Databases are afforded legal protection under the Database Directive (96/9/EU). The owner of a protected database has the right to stop others extracting and/or re-utilising the whole or a substantial part, evaluated qualitively and /or quantitively, of the contents of the database.

In Apis-Hristovch EOOD v Lakorda, the European Court of Justice (ECJ considered how the terms “extraction” and “evaluation of a substantial part” should be constructed. The following are its most noteworthy conclusions:

  • “Extraction”

Permanent/temporary extraction

The Directive defined extraction as “the permanent or temporary transfer of all or a substantial part of the database to another medium by any means or in any form”. In including the concept of “temporary transfer” the objective of the Community legislature had been to make it clear that there was no de minimis rule applicable to the concept of a transfer. However, whether the transfer was temporary or permanent might, depending on the case in issue, be relevant in assessing the gravity of the infringement and/or the scope of damages to be awarded. In deciding whether a transfer should be classified as permanent or temporary one needed to consider the length of time during which the extracted materials were stored in a medium other than the database.  

Proving extraction

In determining whether extraction had taken place, the fact that physical and technical characteristics present in the contents of the protected database also appeared in the infringing database could be interpreted as evidence of extraction unless that coincidence could be explained by other factors. The fact that materials not available to the public appeared in the infringing database was not sufficient in itself to prove extraction but it could constitute circumstantial evidence of such extraction.  

  • “Substantial part”  

According to existing ECJ case law, the concept of a substantial part evaluated quantitively referred to the volume of the materials extracted from the protected database and had to be assessed in relation to the volume of the whole of that database. In this case the ECJ noted that it followed that where a body of materials consisted of several different modules it was necessary first to determine whether each module itself constituted a protected database. If so then the volume of material allegedly extracted had to be compared to the contents of that module alone. If not and instead the modules taken together formed one database, then the volume extracted had to be compared to the contents of all the modules taken together.

This case will be of interest to all database owners. Click here to read the full judgment in the case.