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Court advisor says poem list infringed database right

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Europe's highest court could strengthen the rights of database creators to protect their work. One of the European Court of Justice's Advocates General has issued an opinion backing a German University's right to stop others using information it compiled.

A European Union Directive protects the content of databases even when they are not protected by copyright law. It does this to protect the significant investment involved in creating a database.

Sufficiently creative and original databases are protected by copyright, but there are many others that are not covered by copyright law, such as telephone directories, music charts or football match listings.

The database right received a setback in 2004 in a case in which the British Horseracing Board (BHB) was told that it could not refuse bookmaker William Hill access to its database of which horses and riders were running on a particular day.

The European Court of Justice (ECJ) ruled that the BHB had not put enough effort into the creation of its database to qualify for protection in a ruling that was widely viewed as weakening the EU's database right.

ECJ Advocate General Eleanor Sharpston, though, has now backed the University of Freibug's right to protect the content of its databases from commercial exploitation by an unrelated company.

Professor Dr Ulrich Knoop, a Professor of German at the University, oversaw the compilation of the 1,100 most important poems in German between 1720 and 1900. The list was published on the internet and served as the basis for an anthology compiled by the University. That list took two-and-a-half years to compile and cost the University €34,900.

A company called Directmedia Publishing then published a CD-ROM called '1000 poems everyone should have', on which 876 of the poems are from the period 1720 to 1900 and all but 20 of those appear on the University's list. Though it took the text of poems from other sources, Directmedia did use the University's list to help its selection of poems for the CD-ROM.

Knoop and the University sued Directmedia, claiming that it had infringed Knoop's copyright as compiler of an anthology and the University's right as a maker of a database.

The ECJ will have to decide whether or not Directmedia's use of the information is an infringement of the University's database rights, or whether there would have to be actual copying of data for infringement to have occurred.

An Advocate General's opinion is only a guide for the ECJ and is followed in around 80 per cent of ECJ rulings.

"Academic commentators take the view that the sui generis right enjoyed by a maker of a database does not entitle him to prevent use of his database as a source of information, even if by that process substantial parts of the data are gradually taken from the database and incorporated in a different database," said Sharpston, outlying the view that would support Directmedia. "The right to protection can be invoked only if all (or substantial parts of) the database contents are transferred ‘physically’, that is to say, are copied to another medium."

That view, she said, "introduces a qualitative criterion, namely the intellectual effort put in by the person who copies the information from the database; and deems that, where that criterion is satisfied, there is no extraction".

"On the other hand, it ties the concept of ‘extraction’ to a particular (limited) definition of what is meant by ‘copying’ data from a database. Neither of these limitations is convincing," said Sharpston. She also said she found no evidence in the EU Directive on databases for the assertion that physical copying was necessary for there to be an infringement.

"It therefore seems both inappropriate and arbitrary to limit the concept of ‘extraction’ to a process by which data incorporated within a database are transferred to another medium by ‘physically’ taking a copy (or copies) of them," she said. "Copying the bulk of the data in a database individually by consulting the database on-screen and then manually entering the data in another medium cannot plausibly be considered to be any less damaging to the investment made by the creator of the database than making an electronic copy of those items from the original database and pasting them directly into another electronic medium."

Sharpston found in favour of the University on the questions referred to her. "I therefore conclude that ‘extraction’ … does not presuppose the (physical) copying of data. In order to constitute an ‘extraction’ … it is immaterial whether the transfer of data from a database … and their incorporation in a different database takes place following individual assessments of the data after consulting the database," she said.

Despite the fact that the opinion strengthens the database right while the BHB case weakened it, Sharpston said that her opinion was based on the BHB ruling.

"It seems to me that transcribing the content of a database after consulting it on-screen and then incorporating it into a different database is just as likely to prejudice the investment of the maker of the database as copying that database electronically or photo-copying it," she said. "The Court’s analysis in The British Horseracing Board does not presuppose that ‘extraction’ should be limited to these latter ways of copying (parts of) a database."

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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