Directive 96/9 on the legal protection of databases (“the database directive”)introduced a sui generis right that was designed to protect the contents of organised collections of data, fifty-fifty if the compilation of information savage far brusk of a piece of occupation of authorship that was entitled to copyright protection. The nature of the sui generis right is defined past times Article seven of the database directive, which provides:
Article sevenToday Advocate General Christine Stix-Hackl has delivered Opinions concerning the interpretation of the database directive inwards no fewer than iv cases that cause got been referred to the European Court of Justice (ECJ) for preliminary rulings. Three bargain alongside databases of football game fixtures, spell the 4th deals alongside a database of horse-racing data. All of these cases enhance issues concerning the truthful import of Article 7. The cases are:
Object of protection
1. Member U.S. of A. shall furnish for a right for the maker of a database which shows that at that spot has been qualitatively and/or quantitatively a substantial investment inwards either the obtaining, verification or presentation of the contents to foreclose extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
2. For the purposes of this Chapter:
(a) 'extraction` shall hateful the permanent or temporary transfer of all or a substantial role of the contents of a database to roughly other medium past times whatever way or inwards whatever form;
(b) 're-utilization` shall hateful whatever course of report of making available to Earth all or a substantial role of the contents of a database past times the distribution of copies, past times renting, past times on-line or other forms of transmission. The starting fourth dimension sale of a re-create of a database inside the Community past times the rightholder or alongside his consent shall exhaust the right to command resale of that re-create inside the Community; Public lending is non an deed of extraction or re-utilization.
3. The right referred to inwards paragraph 1 may live on transferred, assigned or granted nether contractual licence.
4. The right provided for inwards paragraph 1 shall apply irrespective of the eligibility of that database for protection past times copyright or past times other rights. Moreover, it shall apply irrespective of eligibility of the contents of that database for protection past times copyright or past times other rights. Protection of databases nether the right provided for inwards paragraph 1 shall live on without prejudice to rights existing inwards abide by of their contents.
5. The repeated as well as systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict alongside a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall non live on permitted.
* Case C-46/02 Fixtures Marketing Ltd v Oy Veikkaus Ab (referred from Finland)
* Case C-444/02 Fixtures Marketing Ltd v Organismos Prognostikon Agonon Podosfairou (referred from Greece)
* Case C-338/02 Fixtures Marketing Ltd v Svenska Spel AB (referred from Sweden)
* Case C-203/02 British Horseracing Board Ltd as well as others v William Hill Organization Ltd (referred from the United Kingdom)
The questions referred to the ECJ are likewise lengthy as well as complex to relate here, but the summary of the Advocate General’s Opinion goes equally follows (all references to Articles are to provisions of the database directive):
1. Whether the works, information or other materials derived from the database cause got the same systematic or methodical organisation as well as private accessibility equally inwards the master database is non relevant to the interpretation of the expressions ‘a substantial role … of the contents of that database’ or ‘insubstantial parts of the contents of the database’ inwards Article seven (BHB).
2. The facial expression ‘obtaining’ inwards Article 7(1) must live on interpreted equally pregnant that it also covers information created past times the maker if the creation of the information took house at the same fourth dimension equally its processing as well as was inseparable from it (BHB).
3. The term ‘verification’ inwards Article 7(1) is to live on interpreted equally pregnant that it is non limited to ensuring from fourth dimension to fourth dimension that information contained inwards a database is or remains right (BHB).
4. The facial expression ‘a substantial part, evaluated qualitatively ... of the contents of that database’ inwards Article 7(1) is to live on interpreted equally pregnant that the technical or commercial value of the affected role must live on taken into account. The facial expression ‘a substantial part, evaluated quantitatively ... of the contents of that database’ inwards Article 7(1) is to live on interpreted equally pregnant that the amount of the affected role is relevant. However, inwards both cases it is non precisely the relative amount of the affected role equally a proportion of the contents equally a whole that is relevant (BHB; Svenska Spel).
5. The facial expression ‘insubstantial parts of the contents of the database’ inwards Article 7(5) is to live on interpreted equally pregnant that such parts are to a greater extent than than private information as well as less than ‘substantial parts’ inside the pregnant of Article 7(1) (BHB).
6. The term ‘extraction’ inwards Article seven covers precisely the transfer of the contents of the database straight from the database to roughly other information medium (BHB).
7. The term ‘re-utilisation’ inwards Article seven covers non precisely the making available to Earth of the contents of the database straight from the database, but also the making available to Earth of works, information or other materials which are derived indirectly from the database, without having direct access to the database (BHB).
8. Acts which foreclose the economical exploitation of the sui generis right past times its proprietor fifty-fifty on potential markets are to live on considered to live on ‘acts which conflict alongside a normal exploitation of that database’. Acts which harm the legitimate economical interests of the maker to a bird which exceeds a certainly threshold are to live on considered to live on ‘acts which unreasonably prejudice the legitimate interests of the maker of the database’ (BHB).
9. Article 10(3) is to live on interpreted equally pregnant that whatever ‘substantial change’ to the contents of a database which qualifies the database for its ain term of protection, entails that the resulting database must live on considered to live on a new, variety database, including for the purposes of Article 7(5) (BHB).
10. In assessing whether a database is the upshot of a ‘substantial investment’ inside the pregnant of Article 7(1), the run of the investment is non material. Investment for the run of drawing upwards the fixture lists inwards a databank must also live on taken into line of piece of occupation organisation human relationship (Svenska Spel).
11. The protection granted past times Article 7(1) as well as Article 7(5) against the ‘extraction’ of the contents of a database is confined to practices which entail direct exploitation of the database. The protection granted past times Article 7(1) as well as Article 7(5) against ‘re-utilisation’ also covers the exploitation of the contents of a database where those contents are available from roughly other source (Svenska Spel).
12. The facial expression ‘normal exploitation’ inwards Article 7(5) of the Directive must live on interpreted equally pregnant that economical exploitation tin sack live on prevented past times the possessor of the sui generis right on potential markets too. The facial expression ‘unreasonably prejudice’ inwards Article 7(5) must live on interpreted equally referring to harm to the legitimate economical interests of the maker which goes beyond a certainly threshold (Svenska Spel).
13. The term ‘database’ inwards Article 1 is to live on interpreted equally pregnant that it tin sack also comprehend lists of football game fixtures (Organismos).
14. Article 7(1) must live on interpreted equally pregnant that a database containing lists of football game fixtures tin sack live on the object of protection, if qualitatively or quantitatively a substantial investment inwards the obtaining, verification or presentation of the contents is necessary. The maker of such a database has the right to foreclose extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database (Organismos).
15. Article 7(5) prohibits the repeated as well as systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict alongside a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database (Organismos).
16. Article seven inwards conjunction alongside Article 10(3) must live on interpreted equally pregnant that extraction and/or re-utilisation is also prohibited inwards abide by of a database to the contents of which at that spot has been a substantial change, evaluated qualitatively or quantitatively, which is therefore the upshot of a substantial novel investment, evaluated qualitatively or quantitatively (Organismos).
17. The requirement inwards Article 7(1) for a link betwixt the investment as well as the making of the database must live on interpreted inwards the feel that the obtaining referred to inwards Article 7(1) as well as the investment directed at it refers, inwards a representative such equally that inwards the primary proceedings, to investment which is directed at the conclusion of the dates of the matches as well as the jibe pairings themselves as well as the drawing upwards of the fixture listing also includes investment which is non relevant to the appraisal of the criteria for granting protection (Oy Veikkaus).
18. The protection provided for past times the Directive against extraction and/or re-utilisation must live on understood equally pregnant that persons other than the authors of the fixture listing may not, without authorisation, utilization the information inwards that fixture listing for betting or other commercial purposes (Oy Veikkaus).
19. Influenza A virus subtype H5N1 substantial part, evaluated qualitatively and/or quantitatively, of the contents of a database may also live on affected where, of the information inwards the fixture list, on each occasion precisely information necessary for i calendar week is used inwards the weekly pools coupons, as well as where the information relating to the matches is obtained as well as verified from sources other than the maker of the database continuously throughout the flavor (Oy Veikkaus).
volition postulate a petty fourth dimension to digest all this. What he tin sack say, though, is 2 things.
* One surface area of argument is the upshot of updating an existing database: does it larn a novel database inwards abide by of which a fresh menstruum of xv years protection may live on enjoyed? The Advocate General advises that whatever ‘substantial change’ to the contents of a database which qualifies the database for its ain term of protection way that the resulting database must live on considered to live on a “new, variety database”. This may live on impossible to ascertain inwards practice: you lot tin sack maintain amending information on a database as well as it may modify a peachy bargain inwards price of novel content -- but tin sack it e'er live on said to live on “separate”? If incremental amendments are non adequately protected, however, the incentive to brand databases available may live on greatly reduced.
* The Advocate General has also advised that the requirement for a link betwixt an investment as well as the making of the database must live on interpreted inwards the feel that it refers, on the facts of the primary proceedings, to investment which is directed at the conclusion of the dates of the matches as well as the jibe pairings themselves. This advice volition live on greatly welcomed past times those who pass a lot of fourth dimension on endeavour creating or ascertaining information which costs petty or nix to describe upwards inwards its terminal form.
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