Database Right: What constitutes “extraction” for the purposes of infringement
Last week, the European Court of Justice (ECJ) gave its much-anticipated judgment on what sorts of actions will constitute an infringement of database rights under the EC Database Directive. In a broad interpretation of the meaning of “extraction” of data from a database, the Court said “extraction” should not be confined to the physical copying of data.
Background
A German professor directed a project at the University of Freiburg to create a list of significant poems. This was published on the internet as “The 1100 most important poems in German literature between 1730 and 1900”. The process of choosing the titles was complex and the project took more than two and a half years to complete. The project costs were paid for by the University.
Directmedia Publishing GmbH (“Directmedia”) subsequently sold a CD-ROM entitled “1000 poems everyone should have”. Out of these, 856 poems appeared in the list created by the professor, Ulrich Knoop. Directmedia admitted using the University’s list in its research for the CD-ROM, but denied simply copying it. It said it had critically examined the University’s list, and had omitted some poems while adding others. Directmedia took the actual text of the poems on the CD-ROM from its own digital resources.
Directmedia was sued by Professor Knoop for copyright infringement and by the University for infringement of its database right under the EC Database Directive (the “Directive”).
Under Article 7(1) of the Directive, the database right is a “right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilisation of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”
“Extraction” is defined in Article 7(2)(a) as “the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form”.
Findings of the German courts
The German courts initially found Directmedia liable on the two counts of copyright infringement and database right infringement, but the company was allowed to appeal the decision about the database right infringement. Before making its decision as to whether Directmedia’s actions constituted infringement, the Bundesgerichtshof (German appeal court) referred a question about the nature of prohibited “extraction” under the Directive to the ECJ.
The question put to the ECJ was whether the concept of “extraction” requires the physical copying of the elements of one database to another, or whether it could include a transferral following a visual consultation of the database and selection of data based on the personal assessment of the transferor.
Decision
The ECJ has decided that the definition of “extraction” in the Directive is not meant to apply solely to the mechanical copying of data (literally copying and pasting the data) without any adaptation.
“Extraction”, the Court said, could include the transfer of data to another database by reproducing data after an on-screen consultation of the first database and an individual assessment of its data. The practical details of the transfer, such as whether the contents were copied by a technical (e.g. electronic) or manual process, or whether the transferor had critically assessed the data, were irrelevant. Whether the elements transferred were arranged differently was also unimportant.
When assessing whether “extraction” has occurred, the key issue, in the ECJ’s view, is whether the transfer is of either a “substantial part” (assessed qualitatively or quantitatively) of the protected contents of the first database, or of “insubstantial parts” which - because the copying was repeated or systematic - resulted in the effective reconstruction of a substantial part of the protected contents.
In this respect, the ECJ reiterated the position it gave in 2004 in the British Horseracing Board case, which found that the qualitative test for the meaning of a “substantial part” should relate only to infringement of the original database creator’s investment in obtaining, verifying or presenting the data. In other words, if the information taken did not appropriate the results of that investment, then it would be difficult to prove database right infringement.
It is now for the German courts to apply the ECJ’s position to decide, on the facts, whether or not Directmedia’s actions did in fact amount to an extraction that infringed the University’s database rights.
Comment
The ECJ’s decision displays a pragmatic approach aimed squarely at furthering what it sees as the Directive’s purpose of protecting the financial investments made by database creators. The Court’s interpretation of the Directive’s aim, as protecting against the “unauthorised appropriation of the results of that investment” by someone who reconstitutes the database or a substantial part of it “at a fraction of the cost needed to design it independently”, backs up its previous focus on the financial investment behind databases, as set out in British Horseracing Board.
This new decision makes clear that, in pursuit of this aim, the ECJ will expect national courts to take a broad view when assessing whether activities constitute “extraction” of data. Compilers of databases who draw on other databases in their research should be careful to ensure their practices could not constitute “extraction” in the light of this judgment.
