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Euro judges strengthen protections for database creators

Sides with University of Freiburg in poem row

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The judgment was delivered four months after ECJ Advocate General Eleanor Sharpston published her opinion on the case, in which she advised that extraction from a database "does not presuppose the [physical] copying of data".

She said: “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."

Sharpston said that her opinion was based on the British Horse Racing Board 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.”

The ECJ agreed: "It cannot … be argued, as Directmedia has done, that only acts consisting of the mechanical reproduction, without adaptation, by means of a standard ‘copy/paste’ process, of the contents of a database or a part of such a database fall within the concept of extraction," it said.

The judgment continued: “It is of little importance that the act of transfer in question is for the purpose of creating another database, whether in competition with the original database or not, and whether the same or a different size from the original, nor is it relevant that the act is part of an activity, whether commercial or not, other than the creation of a database.

"Moreover … the transfer of all or a substantial part of the contents of a protected database to another medium, which would be necessary for the purposes of a simple on-screen display of those contents, is of itself an act of extraction that the holder of the sui generis [unique] right may make subject to his authorization," it said.

The judgment concluded: “The transfer of material from a protected database to another database following an on screen consultation of the first database and an individual assessment of the material contained in that first database is capable of constituting an ‘extraction’ [within the meaning of the Directive] to the extent that – which it is for the referring court to ascertain – that operation amounts to the transfer of a substantial part, evaluated qualitatively or quantitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents."

The case now returns to Germany to resolve the original dispute, in which the District Court ruled in favour of Knoop and the University. Directmedia’s appeal to the Provincial Court of Appeal failed, so it appealed on a point of law to the Federal Court of Justice. This court referred it in turn to the ECJ for a preliminary ruling.

Copyright © 2008, OUT-LAW.com

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

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