Law and Information

Our Londoner colleague and friend Ian Brown (Happy New Year, Ian!) points us to Jamie Boyle’s FT.com Op-Ed on the European Commission’s recent Database Directive impact analysis.

Cedric Manara points us to an evaluation report (I was only able to open/download it by using Internet Explorer) on the EU Database Directive published by the DG Internal Maket and Services. The evaluation focuses on whether the introduction of this right led to an increase in the European database industry’s rate of growth and in database production. According to the press release, it was conducted on the basis of an online survey addressed to the European database industry and the Gale Directory of Databases as the largest existing database directory that contains statistics indicating the growth of the global database industry since the 1970s.

The most interesting and important part of the report (p. 5) reads as follows:

These findings, I believe, have also the potential to shape the U.S. debate on the question of database protection. For conclusions within the EU framework see pp. 5-6 of the report.

I’m catching up (terribly delayed) with a couple of interesting articles, research papers, and news reports. Here’s a selection of today’s recommended readings:

* M. Davison and B. Hugentholtz’s piece “Football fixtures, horseraces and spinoffs: the ECJ domesticates the database right”

* Natalie Helberger’s Indicare article “Thou shalt not mislead thy customer! The pitfalls of labelling and transparency”

* Mark N. Cooper, TIME FOR THE RECORDING INDUSTRY TO FACE THE MUSIC: THE POLITICAL, SOCIAL AND ECONOMIC BENEFITS OF PEER-TO-PEER COMMUNICATIONS NETWORKS

* Recent Pew report on Music and Video Downloading

* News.com report on Bertelsmann’s new P2P service

* Heise on “Google News: how far does freedom of speech go?”

* I almost forgot this one: Heise on the German Green Party talking about side effects of search engines

Happy Easter.

I’ve just finished reading four important judgments by the European Court of Justice (ECJ) concerning the EU-Directive on the Legal Protection of Databases (“Database Directive”.) The judgments of the Court in the cases Fixtures Marketing Ltd v. Oy Veikkaus Ab, The British Horseracing Board Ltd and Others v. William Hill Organisation Ltd, Fixtures Marketing Ltd v. Svenska Spel AB, and Fixtures Marketing Ltd v. Organismos prognostikon agonon podosfairou (OPAP) relate to similar factual circumstances (for a summary, click here), i.e., databases of sporting information such as horse racing information in the British Horseracing Board case and football fixtures in the other three cases. Certain pieces of information from these databases were used by third parties for commercial gambling operations. In proceedings before the relevant national courts, the claimants alleged that these uses by the gambling operators were an infringement of the claimants’ sui generis database rights under the Database Directive. In each case, the national courts referred a set of question to the European Court of Justice. The questions raised by the national courts concern, inter alia, the definition of the term “database” in the Directive, the scope of protection (especially the “substantial investment”-requirement), and the infringement of the sui generis right through extraction or re-utilization. In today’s post, I’d like to focus on the definition of the term “database”.

What is a “database”?

In order to determine the scope of protection of databases under the Database Directive, one first has to consider the definition of the term ‘database’ as used in the Directive. According to Article 1(2) of the Database Directive, “‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.” In Fixtures Marketing Ltd v. OPAP, the ECJ confirms that the term has a wide scope, “unencumbered by considerations of formal, technical or material nature.” (para. 20) In this context, the Court points out that electronic and non-electronic databases are protected under the Directive. Moreover, the ECJ confirms that the definition does not include quantitative requirements, i.e., that the definition does not depend on the question as to whether a significant number of data or materials is involved or not. (para. 24) Consequently, the definition as set forth by the Database Directive is broader than the one suggested in Section 2(5)(A) of the U.S. Database and Collections of Information Misappropriation Bill, where the term ‘database’ is defined as “a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them.” (Emphasis added.)

The ECJ further clarifies that it is not required that a database is its maker’s own intellectual creation to be classified as such. However, the criterion “originality” plays an important role in the assessment whether a database enjoys copyright protection under Article 3 of the Database Directive. (para. 26) In this regard, the standard laid down by the Database Directive is similar to Feist.

In sum, the classification of a database depends on three (analytically distinct, although related) elements:

(1) Collection of ‘independent materials.’ Article 1(2) requires, inter alia, that the database consists of a collection of independent works, data or other materials. This criterion, according to the ECJ, requires that the materials are separable from one another “without their informative, literary, artistic, musical or other value being affected.” (para. 29; emphasis added.) It is an open question whether or not this interpretation is more restrictive than the one suggested by the Advocate-General, according to which the criterion should be understood “as meaning that the data or materials must not be linked or must at least be capable of being separated without loosing their informative content.” (para. 39 of the Opinion, emphasis added.) The “independence”-requirement is particularly relevant in the context of musical recordings and with regard to movies. While it seems clear that the sound of a musical recording as such or the pictures of a movie do not fall within the scope of the definition (see also recital 17 of the Database Directive) because they are note separable without affecting the artistic value of the work, it remains unclear whether the compilation of musical recordings on a CD or the compilation of video clips on a DVD, for instance, is a database or not. The Advocate-General seems to suggest that a compilation of musical recordings does not qualify as a database; para. 29 of the Opinion.) I would argue, by contrast, that different musical recordings on a CD (think about a “Best Of” album as the prime example), by and large, are independent, systematically or methodologically arranged, and individually accessible works. Arguably, exception to the rule might exist, for instance in cases of interrelated “variations” on a theme, where the separately stored and individually accessible musical works cannot be separated without affecting the musical value of the works. In any event, the qualification of a compilation as a database is only a necessary, but not sufficient requirement for sui generis protection. In fact, the Database Directive seems to suggest that compilations of different musical works are databases, but are not protected due to lack of substantial investment as required by Article 7 (see recital 19).

(2) Systematic or methodical arrangement. The independent materials must be systematically or methodically arranged. Recital 21 of the Database Directive states that it is not necessary “for those materials to have been physically stored in an organized manner.” In essence, this criterion makes sure that randomly accumulated information does not fall within the scope of the definition. The ECJ clarifies that this second condition “implies that the collection should be contained in a fixed base, of some sort, and include technical means such as electronic, electromagnetic or electro-optical processes … , or other means such as an index, a table of contents, or a particular plan or method of classification, to allow the retrieval of any independent material contained within it.” (para. 30) According to the Advocate-General, it is sufficient “if a structure is established for the data and they are organised only following application of the appropriate search programme, and thus essentially through sorting and, possibly, indexation.” (para. 40 of the Opinion.) As a result, the threshold established by the “arrangement”-criterion is rather low. This conclusion is confirmed by previous case law in EU member states (for an overview, see the Database Right File by Bernt Hugenholtz.) In C-Villas, for instance, the Austrian Supreme Court held that a homepage with information on eight holiday houses located on the Caribbean island had been systematically arranged, since the websites were individually accessible and the villas described per Island, village, and based on the housing equipment. In the German case Babynet, a District Court held that a website with 251 alphabetically (sic!) arranged links is a systematically arranged collection of independent (and individually accessible) materials.

(3) Individually accessible. The third element of the definition set forth in Article 1(2) of the Database Directive requires that the independent materials making up the collection are individually accessible by electronic or other means. Against this backdrop, the Advocate-General argued that the mere storage of data is not covered by the term database. (para. 41 of the Opinion.) However, scholars have argued that it is unlikely that independent works, data and materials can be stored systematically or methodologically without being individually accessible. In the context of the present cases, the ECJ did not have reason to further explore this question. Instead, the ECJ discussed the second and third requirement in one paragraph and concluded that, together, they make it possible “to distinguish a database within the meaning of the directive, characterised by a means of retrieving each of its constituent materials, from a collection of materials providing information without means of processing the individual materials which make it up.” (para. 31)

In sum, the ECJ confirms the broad meaning of the term ‘database’ in Article 1(2) of the Database Directive. Thus, it is not surprising that football fixture lists have been considered to be a database within the meaning of the Directive. However, it is important to note that this is a necessary, but not a sufficient condition for the grant of the sui generis right set forth by Article 7 of the Database Directive.

In next posts, I will take a closer look at the sui generis protection in general and the “substantial investment”-requirement in particular, and discuss the infringement of the sui generis right through extraction or re-utilization.

Comments, as always, most welcome and much appreciated.