ECJ: no legal protection for spin-off databases

The European Court of Justice has decided to diminish the legal protection
of so called ‘spin-off’ databases under the Database Directive 1996/9/EC.
In order to claim ‘sui generis’ database protection, a substantial
investment must be made “in seeking, collecting, verifying and presenting
existing materials”. The resources used to create the materials which make
up the database can _not_ be counted as substantial investment. In other
words; if a database is a logical spin-off of your main activity, the data
cannot be protected against use by third parties. These verdicts juxtapose
the opinion of the Advocate General, issued on 8 June 2004.

The parties involved in the 4 cases 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 by the bookmakers.

In the case of football fixture lists the Court finds it does not require
any particular effort on the part of the professional leagues to make up
such a list. “Those activities are indivisibly linked to the creation of
those data, in which the leagues participate directly as those responsible
for the organisation of football league fixtures.”

In the case of the horse races, the Court similarly acknowledges the
database right of the British Horseracing Board, but finds William Hill
only uses insubstantial parts, since they only use parts of the database
that do not require separate substantial investments.

Press release Curia verdict in cases C-46/02, C-203/02, C-338/02 and
C-444/02 (09.11.2004)
http://www.curia.eu.int/en/actu/communiques/cp04/aff/cp040089en.pdf

The British Horseracing Board v William Hill (09.11.2004)
http://curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79958890C19020203&doc=T&ouvert=T&seance=ARRET&where=()

EDRI-gram 2.15 ‘Opinion European Court of Justice: perpetual rights for
databases’ (04.08.2004)
http://www.edri.org/edrigram/number215/databases