The William Hill case in 2004 placed serious doubt on the value or usefulness of the sui generis database right (“the database right”) introduced by EC Directive 9/96. However, the most recent decision of the European Court of Justice (“ECJ”) in Directmedia Publishing GmbH v Albert Ludwigs Universitat Freiburg breathes new life into the database right. It may also give many database producers cause for concern, given that their industries are founded on the basic need to extract information from other sources in order to develop new products.
The Directmedia case examined whether an anthology of poems, as compiled by an eminent University lecturer in conjunction with a team of academics in the University of Freiburg, was copied by the defendant, Directmedia Publishing. Directmedia argued that they had not taken large parts of the anthology by traditional means of copy and pasting information. However, they admitted to consultation of the anthology and inclusion of a number of entries from the anthology in their own database. Directmedia also choose to exclude a number of the poems in the University’s anthology from its own work. In total 856 of the poems included in the University’s original anthology were also included in the Directmedia database as a result of consultation of the anthology.
The ECJ was asked whether the term “extraction” in Article 7(2) of the Database Directive covered the operation of transferring elements of one database to another database following visual consultation of the first database and a selection of those elements based on personal assessment. The court (perhaps not surprisingly) held that this type of extraction was contemplated by the Database Directive.
More surprisingly, the court indicated that smaller parts of the anthology, taken systematically over a period of time in this way, could amount to a reconstruction of the database as a whole. This would be the case, according to the court, whether or not the anthology was re-constituted in the same structure or in an entirely different arrangement.
Clearly if data, which is already contained in a separate anthology, is included in a later created database by coincidence there will be no database right infringed. However, starting from an earlier database and working forward from there significantly increases the risk of database infringement.
This ECJ decision, is likely to have wide ranging consequences for database producers and their businesses. It means that no short cuts can be taken in compiling databases. If a database is to be developed it must be done from scratch and without reference to, or reliance on, pre-existing databases. In this decision the ECJ has confirmed that the infringing act of extraction should be interpreted broadly which will provide database owners with a much greater degree of comfort, provided that is, that they can claim subsistence of the database right in the first place!