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Euro judges strengthen protections for database creators

Sides with University of Freiburg in poem row

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A judgment by Europe’s highest court has strengthened the rights of database creators to protect their work from being used by third parties without permission. The database right protects against more than just copying and pasting, it ruled.

The decision by the European Court of Justice (ECJ) means that the transfer of material from a protected database to another database may be prevented, even if there is no technical process of copying.

The ECJ affirmed the right of the University of Freiburg to protect the content of a database of poem titles from commercial exploitation by an unrelated company.

The judgment said that, where the maker of a database makes the contents of that database accessible to third parties, even if they have to pay for access, the maker may not prevent those third parties from consulting that database for information purposes. It is only when the on-screen display of the contents of that database necessitates the transfer of all or a substantial part of those contents to another medium that the maker's authorisation may be required.

The EU Database Directive of 1996 created a right to protect the content of databases that are the subject of significant investment, even when they are not protected by copyright law. Databases are protected by copyright law when they are considered creative enough to qualify.

The right, however, has been a controversial one because of a lack of clarity about the exact extent of its protection. It received a setback in 2004, in a case in which the British Horseracing Board was told that it could not refuse bookmaker William Hill access to its database of the horses and riders running on a particular day.

The ECJ had ruled that the British Horseracing Board had not put enough effort into the creation of its database to qualify for protection in a ruling that was widely viewed then as weakening the EU's database right.

The ECJ ruled yesterday in favour of the University of Freiburg and one of its professors, Dr Ulrich Knoop. The ECJ did not have to decide what constitutes a database under the Directive. Instead, it focused on what constitutes infringement.

Professor Knoop oversaw the compilation of the 1,100 most important poems in German between 1720 and 1900. The list of titles was published on the internet and served as the basis for an anthology compiled by the university. The list took two-and-a-half years to compile, costing 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 date from the period 1720 to 1900. All but 20 of these also featured in Knoop's list. 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.

Germany’s Federal Court of Justice had already upheld the action brought by Knoop as compiler of an anthology. It accepted that the list of titles constituted a 'database' within the meaning of the Directive, so the ECJ did not revisit the most controversial analysis of the British Horseracing Board case. Instead, the ECJ was asked whether Directmedia’s use of the contents of the database constituted an ‘extraction’ within the meaning of the Directive.

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