{"id":151,"date":"2004-11-23T18:43:59","date_gmt":"2004-11-23T22:43:59","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ugasser\/2004\/11\/23\/what-is-a-database-under-eu-law\/"},"modified":"2006-12-10T10:10:56","modified_gmt":"2006-12-10T14:10:56","slug":"what-is-a-database-under-eu-law","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ugasser\/2004\/11\/23\/what-is-a-database-under-eu-law\/","title":{"rendered":"What is a database under EU law?"},"content":{"rendered":"

<\/a> I\u2019ve just finished reading four important judgments by the European Court of Justice (ECJ) concerning the EU-Directive on the Legal Protection of Databases<\/a> <\/a>(\u201cDatabase Directive\u201d.) The judgments of the Court in the cases Fixtures Marketing Ltd v. Oy Veikkaus Ab<\/a>, The British Horseracing Board Ltd and Others v. William Hill Organisation Ltd<\/a>, Fixtures Marketing Ltd v. Svenska Spel AB<\/a>, and Fixtures Marketing Ltd v. Organismos prognostikon agonon podosfairou (OPAP)<\/a> relate to similar factual circumstances (for a summary, click here<\/a>), 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\u2019 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 \u201cdatabase\u201d in the Directive, the scope of protection (especially the \u201csubstantial investment\u201d-requirement), and the infringement of the sui generis right through extraction or re-utilization. In today\u2019s post, I\u2019d like to focus on the definition of the term \u201cdatabase\u201d.<\/p>\n

What is a \u201cdatabase\u201d?<\/span><\/p>\n

In order to determine the scope of protection of databases under the Database Directive, one first has to consider the definition of the term \u2018database\u2019 as used in the Directive. According to Article 1(2) of the Database Directive, \u201c\u2018database\u2019 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.\u201d In Fixtures Marketing Ltd v. OPAP<\/a>, the ECJ confirms that the term has a wide scope, \u201cunencumbered by considerations of formal, technical or material nature.\u201d (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<\/a>, where the term \u2018database\u2019 is defined as \u201ca collection of a large number<\/span> 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 <\/span>may access them.\u201d (Emphasis added.)<\/p>\n

The ECJ further clarifies that it is not required that a database is its maker\u2019s own intellectual creation to be classified as such. However, the criterion \u201coriginality\u201d 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<\/a>.<\/p>\n

In sum, the classification of a database depends on three (analytically distinct, although related) elements:<\/p>\n

(1) Collection of \u2018independent materials.\u2019<\/span> 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 \u201cwithout their informative, literary, artistic, musical or other value being affected<\/span>.\u201d (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 \u201cas meaning that the data or materials must not be linked or must at least be capable of being separated without loosing their informative content<\/span>.\u201d (para. 39 of the Opinion<\/a>, emphasis added.) The \u201cindependence\u201d-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 <\/span>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 \u201cBest Of\u201d 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 \u201cvariations\u201d 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).<\/p>\n

(2) Systematic or methodical arrangement<\/span>. The independent materials must be systematically or methodically arranged. Recital 21 of the Database Directive states that it is not necessary \u201cfor those materials to have been physically stored in an organized manner.\u201d 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 \u201cimplies 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 \u2026 , 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.\u201d (para. 30) According to the Advocate-General, it is sufficient \u201cif 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.\u201d (para. 40 of the Opinion.) As a result, the threshold established by the \u201carrangement\u201d-criterion is rather low. This conclusion is confirmed by previous case law in EU member states (for an overview, see the Database Right File<\/a> by Bernt Hugenholtz<\/a>.) In C-Villas<\/a>, 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>, a District Court held that a website with 251 alphabetically (sic!) arranged links is a systematically arranged collection of independent (and individually accessible) materials.<\/p>\n

(3) Individually accessible.<\/span> 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 \u201cto 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.\u201d (para. 31)<\/p>\n

In sum, the ECJ confirms the broad meaning of the term \u2018database\u2019 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.<\/p>\n

In next posts, I will take a closer look at the sui generis protection in general and the \u201csubstantial investment\u201d-requirement in particular, and discuss the infringement of the sui generis right through extraction or re-utilization.<\/p>\n

Comments, as always, most welcome and much appreciated.<\/p>\n","protected":false},"excerpt":{"rendered":"

I\u2019ve just finished reading four important judgments by the European Court of Justice (ECJ) concerning the EU-Directive on the Legal Protection of Databases (\u201cDatabase Directive\u201d.) 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 […]<\/p>\n","protected":false},"author":202,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1189,1204,1199],"tags":[],"class_list":["post-151","post","type-post","status-publish","format-standard","hentry","category-database-protection","category-global-ip","category-ipr-enforcement"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/posts\/151","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/users\/202"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/comments?post=151"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/posts\/151\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/media?parent=151"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/categories?post=151"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ugasser\/wp-json\/wp\/v2\/tags?post=151"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}