The ECJ's decision in Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg (Case C-304/07, 9 October 2008) confirms that, for the purposes of infringement, "extraction" of data from a protected database should be interpreted broadly and can include transfers made after individual assessment of the data by the user.
- Owners of protected databases can be more confident that they will be able to prevent misuse of their databases even where there is no physical copying of data.
- It is clear that mere consultation of a database to which access has been granted cannot be prevented under the Database Directive.
Background – the relevant law
EC Directive 96/9/EC on the legal protection of databases (the "Directive") introduced an independent right in respect of databases.
The Directive defines a "database" as "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means" (Art 1(2)). Art 7(1) provides a "right for the maker of a [protected] database…to prevent extraction…of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database".
"Extraction" means "the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form" (Art 7(2)(a)).
In addition the Directive also contains a "little and often" test, in that Art 7(5) provides that "the repeated and systematic extraction…of insubstantial parts of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interest of the maker of the database shall not be permitted".
Professor Dr. Ulrich Knoop of the University of Freiburg ("UoF") and his team put together a list, which was published on the internet, entitled "The 1100 most important poems in German literature between 1730 and 1900". The list was assembled by making reference to over 60 anthologies containing over 20,000 poems, listing all poems which were mentioned at least three times. The project took approximately two and a half years to complete and the costs of €34,900 were borne by the UoF.
In 2002 Directmedia Publishing GmbH ("Directmedia") began marketing a CD-ROM entitled "1000 poems everyone should have". Of the 1000 poems on the CD-ROM, 876 were from the period 1720 to 1900 and 856 (98%) of these appeared in the UoF list. In constructing its list of poems, Directmedia assessed each poem on the UoF list, omitting some of them and adding others. Directmedia took the actual verse texts from its own sources.
Professor Knoop and the UoF considered that Directmedia's CD-ROM constituted an infringement of Professor Koop's copyright as compiler of an anthology and the rights of the UoF as maker of a database and brought proceedings accordingly. Both the German regional court (Landgericht) and, on appeal, the Oberlandesgericht ruled in favour of Professor Koop and the UoF.
Directmedia appealed to the Bundesgerichtsof on a point of law, which rejected the appeal against the copyright decision, but referred the following question to the European Court of Justice ("ECJ") in relation to the database right judgment:
"Can the transfer of data from a database protected in accordance with Article 7(1) of the Database Directive and their incorporation in a different database constitute an extraction within the meaning of Article 7(2)(a) of the Database Directive even in the case where that transfer follows individual assessments resulting from consultation of the database, or does extraction within the meaning of that provision presuppose the (physical) copying of data?"
On 9th October 2008 the European Court of Justice gave its decision, following an opinion of Advocate General Sharpston delivered on 10 July and having considered written observations submitted by Directmedia, UoF, the Italian Government and the Commission.
Interpretation of "extraction"
The ECJ considered the correct interpretation of the term "extraction" used in Art 7 of the Directive. Directmedia made submissions in favour of a restrictive interpretation of this term, arguing that only acts consisting of the mechanical reproduction, without adaptation, of the content of a database (or part of it) could fall within the definition of "extraction".
Referring to its decision in the British Horseracing Board reference (Case-203/02, 2004 ECR I-10415), the ECJ stated that the use of the words "by any means or in any form" in the definition of "extraction" in the Directive indicated that the legislature intended this term to be given a wide interpretation.
This approach was supported by recitals 7, 38 to 42 and 48 of the preamble to the Directive, which indicate that an objective of the legislation is to protect the investment of the maker of a qualifying database against unauthorised appropriation of the results of that investment. To give "extraction" a narrow interpretation would deny the maker of a database protection against acts which might nevertheless prejudice that investment.
The ECJ considered that the method used in the appropriation of results is irrelevant; a manual recopying of the contents of a protected database into another medium constitutes "extraction" in the same way as direct copying through technical means (e.g. photocopying, downloading or 'copy/paste' processes). Furthermore the purpose of the transfer of data (e.g. to create another database) was irrelevant.
The fact that Directmedia had individually assessed each poem on Professor Knoop's list, dispensed with some and added others in making its own list was also immaterial to the issue of extraction (although it may be relevant to the question of whether a new protectable database had been formed).
Directmedia submitted that a broad construction of "extraction" would be liable to infringe the legitimate rights of database users to free access to information. The ECJ rejected this submission. It stressed that, once access has been granted to a protected database (whether or not subject to conditions, e.g. payment), the Directive cannot prevent consultation of it for information purposes. What the Directive protects against is the unauthorised permanent or temporary transfer of all or a substantial part of the contents of a database to another medium.
The ECJ, having construed "extraction" broadly, left it to the relevant German courts to determine whether or not a "substantial part" of the contents of the UoF list had been extracted under Arts 7(1) or 7(5) of the Directive. The ECJ therefore ruled as follows:
"The transfer of material from a protected database to another database following an on-screen consultation of the first database and an individual assessment of the material contained in that first database is capable of constituting an ‘extraction’, within the meaning of Article 7 of Directive 96/9 of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, to the extent that – which it is for the referring court to ascertain – that operation amounts to the transfer of a substantial part, evaluated qualitatively or quantitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents."
In giving a wide construction to the term "extraction", the ECJ has stressed the objective of the Directive in protecting the investment made in creating a database. A narrow construction of the term would potentially deny the database maker the power to prevent activities which might prejudice that investment.
This decision will be welcomed by businesses making and owning protectable databases. If the relevant substantial investments have been made in the creation of a protectable database (following the principles set out in the British Horseracing Board reference – see previous newsflash from 10 November 2004), then the scope of acts by third parties which may constitute extraction (and so infringement) is potentially very broad indeed and is not limited to physical copying of data by technical means.