Judgment of the Court of 1 March 2012, Judgment in Case C-604/10, Football Dataco and Others v Yahoo! UK Ltd and Others
A football fixture list cannot be protected by copyright when its compilation is dictated by rules or constraints which leave no room for creative freedom
The fact that the compilation of the list required significant labour and skill on the part of its creator does not justify, in itself, it being protected by copyright
The Database Directive grants copyright protection to databases if the selection or arrangement of their contents constitute the author’s own intellectual creation. The databases can also be eligible for protection by a so-called ‘sui generis’ right when the obtention, verification or presentation of their contents required a substantial investment.
In the main proceedings, the UK company Football Dataco, which is responsible for protecting the rights acquired in the English and Scottish football league fixtures, and the organisers of those leagues accuse Yahoo! UK, Stan James (a bookmaker) and Enetpulse (a sports information provider) of having infringed their intellectual property rights in the football fixture lists by having used those fixture lists without paying financial compensation.
The fixture lists are prepared in accordance with several ‘golden rules’. The process of preparing is in part automated but requires, however, very significant labour and skill in order to satisfy the multitude of requirements of the parties concerned whilst respecting the rules.
The national court has already rejected a ‘sui generis’ protection of those fixture lists in accordance with the case-law of the Court of Justice. By contrast, it raises the question of the possibility of those lists being eligible for copyright protection. In that context, it asks the Court of Justice to clarify the conditions which must be satisfied in order to be eligible for that protection.
The Court states, first, that the copyright protection provided for by the Database Directive concerns the ‘structure’ of the database, and not its ‘contents’. That protection does not extend to the data itself. In that context, the concepts of ‘selection’ and of ‘arrangement’ within the meaning of the directive refer respectively to the selection and the arrangement of data, through which the author gives the database its structure. By contrast, those concepts do not extend to the creation of the data contained in that database. Consequently, the intellectual effort and skill of creating data are not relevant in order to assess the eligibility of the database that contains them for the copyright protection provided for by the directive.
In the present case, the effort and skill of creating the lists relate to the creation of the same data contained in the base. As a consequence, that effort and skill are, in any event, of no relevance in order to assess the eligibility of the football fixture lists concerned for the copyright protection provided for by the directive.
The Court then observes that the notion of ‘intellectual creation’, which is a necessary condition in order to be eligible for copyright protection, refers to the sole criterion of originality. As regards the setting up of a database, that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices. By contrast, that criterion is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom.
The ‘addition of important significance’ to the data by their selection or arrangement in the database does not affect the determination of the originality required for that database to be protected by copyright.
Similarly, the fact that the setting up of the database required, irrespective of the creation of the data which it contains, significant labour and skill on the part of its author does not justify, as such, the protection of it by copyright if that labour and that skill do not express any originality in the selection or arrangement of that data.
It is for the national court to assess, in the light of the considerations set out by the Court, whether the football fixture lists concerned are databases which satisfy the conditions of eligibility for copyright protection. However, the Court adds that unless the procedures for creating the lists concerned as described by the national court are supplemented by elements reflecting originality in the selection or arrangement of the data contained in those lists, they do not suffice for those lists to be protected by the copyright laid down in the directive.
Finally, the Court states that, given that the directive harmonises the protection given by copyright to databases, national legislation which grants copyright protection under conditions which are different to those set out in the directive is incompatible with European Union law.
Judgment of 29 Oct 2015, C-490/14 (Verlag Esterbauer)
The Land of Bavaria, publishes topographic maps covering the entire Federal state of Bavaria on a scale of 1:50 000 through the Regional Office for Surveying and Geographic Information (Landesamt für Vermessung und Geoinformation). Verlag Esterbauer is an Austrian publisher which publishes, amongst other things, atlases, tour books and maps for cyclists, mountain bikers and inline skaters.
The Land of Bavaria considers that Verlag Esterbauer made unlawful use of its topographic maps and appropriated the underlying data in order to produce the material for its maps. It brought proceedings before the Landgericht München (Regional Court, Munich), seeking to have Verlag Esterbauer ordered to discontinue those practices and ordered to pay it damages. The first-instance court upheld the application in all respects.
It was in those circumstances that the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘In relation to the question whether a collection of independent materials exists within the meaning of Article 1(2) of Directive 96/9 because the materials can be separated from one another without the value of their informative content being affected, is every conceivable informative value decisive or only the value which is to be determined on the basis of the purpose of the collection and having regard to the resulting typical conduct of users?’
Following the Court’s ruling
Article 1(2) of Directive 96/9 on the legal protection of databases must be interpreted as meaning that geographical information extracted from a topographic map by a third party so that that information may be used to produce and market another map retains, following its extraction, sufficient informative value to be classified as ‘independent materials’ of a ‘database’ within the meaning of that provision.
Classification as a ‘database’ within the meaning of Article 1(2) of Directive 96/9 is dependent on the existence of a collection of ‘independent materials’, that is to say, materials which are separable from one another without their informative, literary, artistic, musical or other value being affected. The informative value of material from a collection is not affected if it has autonomous informative value after being extracted from the collection concerned. A decline in the informative value of material linked to its being extracted from the collection of which it forms a part does not necessarily rule out the possibility that that material may come within the definition of ‘independent materials’ within the meaning of Article 1(2) of Directive 96/9, provided that that material retains autonomous informative value. The autonomous informative value of material which has been extracted from a collection must be assessed in the light of the value of the information not for a typical user of the collection concerned, but for each third party interested by the extracted material.
Therefore, information from a collection which is utilised for financial gain and in an autonomous manner constitutes ‘independent materials’ from a ‘database’ within the meaning of Article 1(2) of Directive 96/9 since, once extracted, that information provides the customers of the company using that information with relevant information.
Judgment of 9 Nov 2004, C-444/02 (Fixtures Marketing)
According to the order for reference, the organisers of English and Scottish league football retained a company, Football Fixtures Limited, to handle the exploitation of the fixture lists outside the United Kingdom through licensing. Fixtures was assigned the right to represent the holders of the intellectual property rights in those fixture lists.
In Greece, OPAP has a monopoly on the organisation of gambling. In its activities it uses information from the fixture lists for the English and Scotttish football leagues.
Fixtures brought an action against OPAP before the Monomeles Protodikio Athinon on the ground that OPAP’s practices were precluded by the sui generis right it held under Article 7 of the directive.
In the light of the problems of interpretation of the directive, the Monomeles Protodikio Athinon decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
‘1. What is the definition of database and what is the scope of Directive 96/9/EC and in particular Article 7 thereof which concerns the sui generis right?
2.In the light of the definition of the scope of the directive, do lists of football fixtures enjoy protection as databases over which there is a sui generis right in favour of the maker and under what conditions?
3. How exactly is the database right infringed and is it protected in the event of rearrangement of the contents of the database?’
The Court ruled as follows:
1. The term ‘database’ as defined in Article 1(2) of Directive 96/9 on the legal protection of databases refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.
A football fixtures list constitutes a database within the meaning of Article 1(2) of the directive. First, the data contained in it concerning the date, the time and the identity of the teams in a particular football match have, when taken together, an independent informative value in that they provide interested third parties with relevant information about the match concerned. Second, the arrangement of those data in the form of a fixture list meets the conditions as to systematic or methodical arrangement and individual accessibility of the constituent materials of that collection required by Article 1(2) of the directive. (see paras 32-36, 53, operative part)
2. The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9 on the legal protection of databases must be understood to refer to investment in the creation of that database. It therefore refers to the resources used to seek out existing materials and collect them in that database but does not cover the resources used for the creation of materials which make up the contents of a database.
In the context of drawing up a fixture list for the purpose of organising football league fixtures, the resources used to establish the dates, times and the team pairings for the various matches in the league do not constitute such investment. Moreover, finding the data which make up a football fixture list does not require any particular effort on the part of the professional leagues, which participate directly in the creation of the data. The resources used for the verification or presentation of the data making up the list cannot therefore be considered to represent a substantial investment independent of the investment in the creation of those data. (see paras 39-40, 47, 49-51, 53, operative part)
Judgement of 9 October 2008, C-304/07 (Directmedia)
‘The 1 100 most important poems in German literature between 1730 and 1900’ is a list of verse titles which the University of Freiburg published on the Internet. The list was drawn up as part of the ‘vocabulary of the classics’ project under the supervision of Professor Ulrich Knoop. The University, which bore the project costs amounting to a total of EUR 34 900, has had its rights as maker of a database infringed by the distribution of a CD-ROM entitled ‘1 000 poems everyone should have’ by Directmedia. Of the poems on that CD-ROM, 876 date from the period between 1720 and 1900. 856 of those poems are also mentioned in the list of verse titles drawn up by Prof. Knoop.
Directmedia used that list as a guide in selecting the poems for inclusion on its CD-ROM. It omitted certain poems which appeared on that list, added others and, in respect of each poem, critically examined the selection made by Prof. Knoop. Directmedia took the actual texts of each poem from its own digital resources.
The Bundesgerichtshof, which has already upheld the action brought by Prof. Knoop as compiler of an anthology, is of the opinion that the that the resolution of the dispute, in so far as it concerns Directmedia and the University, depends on the interpretation to be given to the Database Directive . That court raises the question whether using the contents of a database in such circumstances constitutes an ‘extraction’ within the meaning of the directive which the maker of the database may prevent.
In its judgment of today, the Court of Justice points out that where the maker of a database makes the contents of that database accessible to third parties, even if he does so on a paid basis, he may not prevent those third parties from consulting that database for information purposes. It is only when on-screen display of the contents of that database necessitates the permanent or temporary transfer of all or a substantial part of such contents to another medium that such an act of consultation may be subject to authorisation by the maker.
The Court observes that the concept of ‘extraction’, which the maker of a protected database may prevent, must be understood as referring to any unauthorised act of appropriation of the whole or a part of the contents of a database. That concept is not dependent on the nature and form of the mode of operation used.
In that context it is immaterial, for the purposes of assessing whether there has been an ‘extraction’, that the transfer is based on a technical process of copying the contents of a protected database, such as electronic, electromagnetic or electro-optical processes or any other similar processes. Even a manual recopying of the contents of such a database to another medium corresponds to the concept of extraction in the same way as downloading or photocopying.
The Court goes on to state that the concept of ‘extraction’ also cannot be reduced to acts concerning the transfer of all or a substantial part of the contents of a protected database.
Lastly, the fact that material contained in one database may be transferred to another database only after a critical assessment by the person carrying out the act of transfer does not preclude a finding that there has been a transfer of elements from the first database to the second.
The Court concludes that the transfer of material from a protected database to another database following an on-screen consultation of the first database and an individual assessment of the material contained in that first database is capable of constituting an ‘extraction’, which the maker of the database may prevent to the extent that – which it is for the referring court to ascertain – that operation amounts to the transfer of a substantial part, evaluated qualitatively or quantitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents.
Judgment of 15 Jan 2015, C-30/14 (Ryanair)
PR Aviation operates a website on which consumers can search through the flight data of low-cost air companies, compare prices and, on payment of commission, book a flight. It obtains the necessary data to respond to an individual query by automated means, inter alia, from a dataset linked to the Ryanair website also accessible to consumers. Access to that website presupposes that the visitor to the site accepts the application of Ryanair’s general terms and conditions by ticking a box to that effect.
Relying on Directive 96/9, the Database Law and the Aw, Ryanair claimed that PR Aviation had infringed its rights relating to its data set and that it had acted contrary to the terms and condition of use of its website which the latter had accepted. It sought an order against PR Aviation to refrain from any infringement of its rights, on pain of a financial penalty and for PR Aviation to pay damages.
The Hoge Raad der Nederlanden decided to stay the proceedings and to refer a question to the Court for a preliminary ruling:
‘Does the operation of [Directive 96/9] also extend to online databases which are not protected by copyright on the basis of Chapter II of [that directive], and also not by a sui generis right on the basis of Chapter III, in the sense that the freedom to use such databases through the (whether or not analogous) application of Article[s] 6(1) and 8 in conjunction with Article 15 [of Directive 96/9], may not be limited contractually?’
The Court ruled as follows:
Directive 96/9 on the legal protection of databases must be interpreted as not being applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 thereof do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.
The fact that a database corresponds to the definition set out in Article 1(2) of Directive 96/9 does not justify the conclusion that it falls within the scope of the provisions of that directive governing copyright and/or the sui generis right if it fails to satisfy either the condition of application for protection by copyright laid down in Article 3(1) of that directive or the conditions of application for the protection by the sui generis right in Article 7(1) thereof. In that regard, it is clear from the purpose and structure of Directive 96/9 that Articles 6(1), 8 and 15 thereof, which establish mandatory rights for lawful users of databases, are not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that it does not prevent the adoption of contractual clauses concerning the conditions of use of such a database.
Judgment of 9 Nov 2004, C-203/02 (British Horseracing
The BHB and Others manage the horse racing industry in the United Kingdom and in various capacities compile and maintain the BHB database which contains a large amount of information supplied by horse owners, trainers, horse race organisers and others involved in the racing industry. Weatherbys Group Ltd, the company which compiles and maintains the BHB database, performs three principal functions, which lead up to the issue of pre-race information.
William Hill, which is a subscriber to both the Declarations Feed and the RDF, is one of the leading providers of off‑course bookmaking services in the United Kingdom, to both UK and international customers. It launched an on-line betting service on two internet sites. Those interested can use these sites to find out what horses are running in which races at which racecourses and what odds are offered by William Hill. The information displayed on William Hill’s internet sites is obtained, first, from newspapers published the day before the race and, second, from the RDF supplied by SIS on the morning of the race.
In March 2000 the BHB and Others brought proceedings against William Hill in the High Court of Justice of England and Wales. In the light of the problems of interpretation of the directive, the Court of Appeal decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
In brief the various questions focused on:
(1) Whether WH’s use of data indirectly sourced from BHB’s database constituted extraction or re-utilisation of a substantial part of the BHB database;
(2) Whether WH’s actions amounted to a repeated and systematic extraction or re-utilisation of insubstantial parts of the database, such as to conflict with normal exploitation of the database or unreasonably prejudice the interests of the maker of the database.
The Court ruled as follows:
1. The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database.
The expression ‘investment in … the … verification … of the contents’ of a database in Article 7(1) of Directive 96/9 must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The resources used for verification during the stage of creation of materials which are subsequently collected in a database do not fall within that definition.
In the context of drawing up lists of horse races, the resources used to draw up a list of horses entered in a race constitute investment not in the obtaining of the contents of the database but in the creation of the data making up the lists relating to those races. The resources used for the checks prior to the entering of a horse on a list for a race relate to the stage of creating the data making up that list and thus do not constitute an investment in the verification of the contents of a database. (see paras 30-31, 34, 38, 40-42, operative part 1)
2. The terms ‘extraction’ and ‘re-utilisation’ as defined in Article 7 of Directive 96/9 on the legal protection of databases must be interpreted as referring to any unauthorised act of appropriation and distribution to the public of the whole or a part of the contents of a database. Those terms do not imply direct access to the database concerned.
The fact that the contents of a database were made accessible to the public by its maker or with his consent does not affect the right of the maker to prevent acts of extraction and/or re-utilisation of the whole or a substantial part of those contents. (see para. 67, operative part 2)
3. The expression ‘substantial part, evaluated … quantitatively, of the contents of [a] database’ in Article 7 of Directive 96/9 on the legal protection of databases refers to the volume of data extracted from the database and/or re-utilised and must be assessed in relation to the total volume of the contents of the database. The expression ‘substantial part, evaluated qualitatively … of the contents of [a] database’ refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database.
Any part which does not fulfil the definition of a substantial part, evaluated both quantitatively and qualitatively, falls within the definition of an insubstantial part of the contents of a database. (see paras 70-71, 73, operative part 3)
4. Article 7(5) of Directive 96/9 on the legal protection of databases, which prohibits, in certain cases, the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database, refers in particular to unauthorised acts of extraction and/ or re-utilisation the cumulative effect of which is to reconstitute and/or make available to the public, without the authorisation of the maker of the database, the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment by the maker. (see para. 95, operative part 4)
Judgment of 9 Nov 2004, C-46/02 (Fixtures Marketing)
In England professional football is organised by the Football Association Premier League Ltd and the Football League Ltd. Fixture lists are drawn up for the matches to be played during the season, that is to say, around 2 000 matches during each season over a period of 41 weeks. The preparation of those fixture lists requires a number of factors to be taken into account, such as the need to ensure the alternation of home and away matches, the need to ensure that several clubs from the same town are not playing at home on the same day, the constraints arising in connection with international fixtures, whether other public events are taking place and the availability of policing.
During the season, the fixture lists may be altered to take account of changes dictated by, for example, the requirements of the television companies, or by postponement of a day’s league matches because of the weather. The professional leagues are also responsible for verifying that matches are held, checking the players’ licences and for the monitoring and announcement of the scores.
Veikkaus has the exclusive right to organise gambling activities in Finland. Those activities concern, inter alia, football fixtures. In that connection, Veikkaus uses, as objects of the various betting games, data concerning matches in English league football, and chiefly concerning matches in the Premier league and in Division One. Around 200 matches are used each week for the purposes of betting. In order to organise such betting, Veikkaus collects data regarding around 400 matches each week from the internet, newspapers or directly from the football clubs and checks its correctness from various sources. Veikkaus’ annual turnover from betting on league football matches in England amounts to several tens of millions of euros.
After the database directive came into force, Fixtures brought an action before the Vantaan käräjäoikeus against Veikkaus alleging that Veikkaus had, since 1 January 1998, been unlawfully using the database constituted by the fixture lists drawn up by the English football leagues.
In the light of the uncertainty as to whether the fixture list at issue is a protected database, and if it is, as to the type of action which constitutes an infringement of the protection provided for by the directive, the Vantaan käräjäoikeus decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1) May the requirement in Article 7(1) of the directive for a link between the investment and the making of the database be interpreted in the sense that the “obtaining” referred to in Article 7(1) and the investment directed at it refers, in the present case, to investment which is directed at the determination of the dates of the matches and the match pairings themselves and, when the criteria for granting protection are appraised, does the drawing up of the fixture list include investment which is not relevant?
(2) Is the object of the directive to provide protection in such a way that persons other than the authors of the fixture list may not, without authorisation, use the data in that fixture list for betting or other commercial purposes?
(3) For the purposes of the directive, does the use by Veikkaus relate to a substantial part, evaluated qualitatively and/or quantitatively, of the database, having regard to the fact that, of the data in the fixture list, on each occasion only data necessary for one week is used in the weekly pools coupons, and the fact that the data relating to the matches is obtained and verified from sources other than the maker of the database continuously throughout the season?’
The Court ruled as follows:
The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9 on the legal protection of databases must be understood to refer to investment in the creation of that database. It thus refers to the resources used to seek out existing materials and collect them in the database but does not cover the resources used for the creation of materials which make up the contents of a database.
In the context of drawing up a fixture list for the purpose of organising football league fixtures, the resources used to establish the dates, times and the team pairings for the various matches in the league do not constitute such investment. Moreover, finding the data which make up such a list does not require any particular effort on the part of the professional leagues, which participate directly in the creation of those data. Nor should the resources used for the verification or presentation of the data making up the list be considered to represent substantial investment independent of the investment in the creation of those data. (see paras 33-34, 41-42, 44-46, 49, operative part)
Judgment of 5 Mar 2009, C-545/07 (Apis-Hristovich)
Apis brought proceedings before the Sofiyski gradski sad (Sofia City Court), first, for cessation of the allegedly unlawful extraction and re-utilisation by Lakorda of substantial parts of its modules ‘Apis pravo’ (‘Apis law’) and ‘Apis praktika’ (‘Apis case-law’), which form part of a general legal information system, namely, at the time of the facts in the main proceedings, ‘Apis 5x’, later ‘Apis 6’ and, second, for compensation for the damage suffered by the applicant in the main proceedings by reason of Lakorda’s conduct.
The Sofiyski gradski sad decided to stay proceedings and refer several questions to the Court for a preliminary ruling.
The Court decided as follows:
As is clear from the very terms of Article 7(2)(a) of Directive 96/9 on the legal protection of databases, the Community legislature intended to include in the concept of ‘extraction’ within the meaning of Article 7 not merely acts of ‘permanent transfer’ but also those of ‘temporary transfer’. The delimitation of the concepts of ‘permanent transfer’ and ‘temporary transfer’ in Article 7 is based on the criterion of the length of time during which materials extracted from a protected database are stored in a medium other than that database. The time at which there is an extraction, within the meaning of Article 7, from a protected database, accessible electronically, is when the materials which are the subject of the act of transfer are stored in a medium other than that database. The concept of extraction is independent of the objective pursued by the perpetrator of the act at issue, of any modifications he may make to the contents of the materials thus transferred, and of any differences in the structural organisation of the databases concerned.
The fact that the physical and technical characteristics present in the contents of a protected database made by a particular person also appear in the contents of a database made by another person may be interpreted as evidence of extraction within the meaning of Article 7 of Directive 96/9, unless that coincidence can be explained by factors other than a transfer between the two databases concerned. The fact that materials obtained by the maker of a database from sources not accessible to the public also appear in a database made by another person is not sufficient, in itself, to prove the existence of such extraction but can constitute circumstantial evidence thereof.
The nature of the computer programme used to manage two electronic databases is not a factor in assessing the existence of extraction within the meaning of Article 7 of Directive 96/9. (see paras 42, 55, operative part 1)
2. Article 7 of Directive 96/9 on the legal protection of databases must be interpreted as meaning that, where there is a body of materials composed of separate modules, the volume of the materials allegedly extracted and/or re-utilised from one of those modules must, in order to assess whether there has been extraction and/or re‑utilisation of a substantial part, evaluated quantitatively, of the contents of a database within the meaning of that article, be compared with the total contents of that module, if the latter constitutes, in itself, a database which fulfils the conditions for protection by the sui generis right set out in Article 7(1) of that directive. Otherwise, and in so far as the body of materials constitutes a database protected by that right, the comparison must be made between the volume of the materials allegedly extracted and/or re-utilised from the various modules of that database and its total contents.
The fact that the materials allegedly extracted and/or re-utilised from a database protected by the sui generis right were obtained by the maker of that database from sources not accessible to the public may, according to the amount of human, technical and/or financial resources deployed by the maker to collect the materials at issue from those sources, affect the classification of those materials as a substantial part, evaluated qualitatively, of the contents of the database concerned, within the meaning of Article 7 of Directive 96/9.
The fact that part of the materials contained in a database are official and accessible to the public does not relieve the national court of an obligation, in assessing whether there has been extraction and/or re-utilisation of a substantial part of the contents of that database, to verify whether the materials allegedly extracted and/or re-utilised from that database constitute a substantial part, evaluated quantitatively, of its contents or, as the case may be, whether they constitute a substantial part, evaluated qualitatively, of the database inasmuch as they represent, in terms of the obtaining, verification and presentation thereof, a substantial human, technical or financial investment. (see para. 74, operative part 2)
3. It is apparent both from the general nature of the terms used in Article 1(2) of Directive 96/9 on the legal protection of databases to define the concept of a database within the meaning of the Directive and from the objective of the protection afforded by the sui generis right instituted by Article 7 of the Directive that the Community legislature intended to give that concept a wide scope, unencumbered by considerations relating, in particular, to the substantive content of the body of materials in question.
Moreover, as is apparent from Article 7(4) of Directive 96/9, the sui generis right applies independently of whether the database and/or its contents are protected, inter alia, by copyright.
It follows that the fact that the materials contained in a legal information system are, by reason of their official nature, not eligible for copyright protection does not, as such, justify a collection consisting of those materials being refused classification as a ‘database’ within the meaning of Article 1(2) of Directive 96/9 or that such a collection should be excluded from the scope of the protection accorded by the sui generis right.
Judgment of 19 Dec 2013, C-202/12 (Innoweb)
Through its website www.autotrack.nl (‘the AutoTrack website’), Wegener provides access to an online collection of car ads, together with a list, updated daily, of 190 000 to 200 000 second-hand cars. Approximately 40 000 of those advertisements are to be found only on the AutoTrack website. The other advertisements can also be found on other advertising sites. With the help of the AutoTrack website search engine, the user can carry out a targeted search for a vehicle on the basis of various criteria.
Via its website, www.gaspedaal.nl, Innoweb provides a meta search engine dedicated to car sales (‘GasPedaal’). ‘meta search engine’ uses search engines from other websites, transferring queries from its users to those other search engines – a feature which differentiates meta search engines from general search engines such as Google. A meta search engine described as ‘dedicated’ is designed to enable searches to be made in one or more specific subject areas. GasPedaal is such a dedicated meta search engine, designed to search for car ads: through a single query on GasPedaal, the user can simultaneously carry out searches of several collections of car ads listed on third party sites, including the AutoTrack website. A car search using GasPedaal enabled the user simultaneously to carry out searches of several collections of car advertisements listed on third party sites, including AutoTrack. the total number of advertisements on websites searched through GasPedaal was around 300,000. GasPedaal daily carried out around 100,000 searches on the AutoTrack website, subjecting approximately 80% of the various combinations of makes or models listed in the AutoTrack collection to search daily. In response to each query, however, GasPedaal displayed only a very small part of the contents of that collection, the contents of that data being determined by the user on the basis of the criteria which were keyed into GasPedaal.
On the view that Innoweb compromises its sui generis right in relation to its database, Wegener brought an action claiming that Innoweb should be ordered to desist from infringing Wegener’s database rights and, at first instance, succeeded in all essential respects.
The Gerechtshof te ’s-Gravenhage decided to stay the proceedings and to refer several questions to the Court for a preliminary ruling.
The Court ruled as follows:
Article 7(1) of Directive 96/9 on the legal protection of databases must be interpreted as meaning that an operator who makes available on the Internet a dedicated meta search engine re-utilises the whole or a substantial part of the contents of a database protected under Article 7, where that dedicated meta engine:
– provides the end user with a search form which essentially offers the same range of functionality as the search form on the database site;
– ‘translates’ queries from end users into the search engine for the database site ‘in real time’, so that all the information on that database is searched through; and
– presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database site concerned for presenting results.
Judgment of 18 Oct 2012, C-173/11 (Football Dataco)
Football Dataco and Others are responsible for organising football competitions in England and Scotland. Football Dataco and Others claim to have, under United Kingdom law, a sui generis right in the ‘Football Live’ database. Football Live is a compilation of data about football matches in progress.
Sportradar GmbH is a German company which provides results and other statistics relating inter alia to English league matches live via the internet (website betradar.com). Betting companies which are customers of Sportradar GmbH enter into contracts with the Sportradar. Those customers include bet365, a company incorporated under the law of the United Kingdom, and Stan James, a company established in Gibraltar, which provide betting services aimed at the United Kingdom market. The websites of both those companies contain a link to betradar.com. When an internet user clicks on the ‘Live Score’ option, the data appears under a reference to ‘bet365’ or ‘Stan James’ as the case may be.
Football Dataco and Others brought proceedings against Sportradar seeking inter alia compensation for damage linked to an infringement by Sportradar of their sui generis right. The Court of Appeal of England and Wales, Civil Division, decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Where a party uploads data from a database protected by the sui generis right under Directive 96/9/EC … onto that party’s web server located in Member State A and in response to requests from a user in another Member State B the web server sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on its screen:
(a) is the act of sending the data an act of “extraction” or “re-utilisation” by that party?
(b) does any act of extraction and/or re-utilisation by that party occur: (i) in A only, (ii) in B only; or (iii) in both A and B?’
The Court decided as follows:
Directive 96/9 does not aim to introduce protection by the sui generis right governed by a uniform law at European Union level. The objective of that directive is, by approximating national laws, to remove the differences which existed between them in relation to the legal protection of databases, and which adversely affected the functioning of the internal market, the free movement of goods and services within the European Union and the development of an information market within the European Union. To that end, the directive requires all the Member States to make provision in their national law for the protection of databases by a sui generis right. In that context, the protection by the sui generis right provided for in the legislation of a Member State is limited in principle to the territory of that Member State, so that the person enjoying that protection can rely on it only against unauthorised acts of re‑utilisation which take place in that territory. (see paras 24-27)
The mere fact that a website containing a database protected by a sui generis right under Directive 96/9 on the legal protection of databases is accessible in a particular national territory is not a sufficient basis for concluding that the operator of that website is performing an act of re‑utilisation caught by the national law applicable in that territory. If the mere fact of being accessible were sufficient for it to be concluded that there was an act of re-utilisation, websites and data which, although obviously targeted at persons outside the territory of the Member State concerned, were nevertheless technically accessible in that State would wrongly be subject to the application of the relevant law of that State.(see paras 36, 37)
Article 7 of Directive 96/9 on the legal protection of databases must be interpreted as meaning that the sending by one person, constituted as a company, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of re‑utilisation of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess.
Facts which may constitute such evidence are the circumstance that the data on that server includes data relating to sports matches taking place in the latter Member State, with the acts of sending proceeding from an intention to attract the interest of the public in that Member State, and the fact that the company granted, by contract, the right of access to its server to companies offering betting services to that public. Finally, the circumstance that the data placed online by that company is accessible to internet users in the latter Member State who are customers of those companies in their own language, which is not the same as those commonly used in the Member States from which the company pursues its activities, may, if that is the case, be supporting evidence for the existence of an approach targeting in particular the public in the latter Member State.
It cannot be argued that an act of re-utilisation within the meaning of Article 7 of Directive 96/9 on the legal protection of databases must in all circumstances be regarded as located exclusively in the territory of the Member State in which the web server from which the data in question is sent is situated. Besides the fact that it is sometimes difficult to localise such a server with certainty, such an interpretation would mean that an operator who, without the consent of the maker of the database protected by the sui generis right under the law of a particular Member State, proceeds to re-utilise online the content of that database, targeting the public in that Member State, would escape the application of that national law solely because his server is located outside the territory of that State.