Opinion European Court of Justice: perpetual rights for databases

By EDRi · August 4, 2004

On 8 June 2004, the European Court of Justice issued an opinion on four (similar) cases regarding the database directive ‘sui generis’ right. The opinion seems to grant perpetual protection to databases, and confirms grave public concerns about the impact of the directive on the use and re-use of online information. Though the opinion of the Advocate General is not binding on the court, it is persuasive and often mirrored in the final verdict.

The parties are the British Horseracing Board (BRB) versus William Hill and Fixtures Marketing Ltd (football fixture lists) versus football pools operators in Finland, Sweden and Greece. Advocate General Stix-Hackl found that the database rights of the plaintiffs (BRB and Fixtures Marketing) were infringed. “‘Bookmakers’ use of data constitutes a prohibited re-utilisation even if they do not obtain the data directly from the database but from other independent sources such as print media or the internet.”

The opinion provides some interpretation on definitions.

1. The mere generation of data is not covered, but “where the creation of data coincides with its collection and screening, and is inseparable from it, the protection of the Directive kicks in.”

2. The Directive prohibits the rearrangement of the contents of a database.

3. There is a general prohibition on the extraction and/or reutilisation of substantial parts i.e. more than half the database.

4. Extraction and/or reutilisation of insubstantial parts is prohibited if it is a repeated or systematic act and prevents the economic exploitation of the database by the owner.

5. Re-utilisation is prohibited even when the data is taken from an independent source e.g. print medium or the internet, as was the case here. It is important to note that the BRB did not give permission to sub-licence this material.

6. Substantial changes give rise to a new database and therefore a new term of protection. For ‘dynamic databases’, the whole database enjoys a new term of protection when changes are made.

7. The term ‘database’ should be interpreted widely.

8. It is up to the national court to assess whether there has been a ‘substantial’ investment.

European Court of Justice press release (08.06.2004)

Case numbers C-46/02, C-203/02, C-338/02, C-444/02

(Contribution by Teresa Hackett, Ireland)