“Extraction” from a database without permission infringes database right. But what is “extraction” and can it occur even if no data from the database is actually being physically copied? Zoë Gaye extracts the key messages from a recent dispute over a poetry collection.
Topic: Intellectual Property
Who: Directmedia Publishing GmbH v Albert Ludwigs-Universitat Freiburg
When: May 2007-October 2008
Where: European Court of Justice (ECJ), Luxembourg
Law stated as at: 9 October 2008
The ECJ was required to determine the correct interpretation of "extraction" as referred to in Article 7 (2)(a) of the EC Directive 96/9/EC (the "Directive").
The ECJ interpreted "extraction" broadly. "Extraction" is not meant to apply only to the mechanical copying of data without adaptation. In the ECJ's opinion "extraction" can include the transfer of data from one database to another by reproducing data after an on-screen consultation of the first database and assessing this data.
Professor Knoop directed a classics project at the Albrecht-Ludwigs-Universität Freiburg (the "University"). Professor Knoop's team put together the Frieburg Anthology, a collection of the 1,100 most important poems in German literature between 1720 and 1933. This list is based upon a selection of 14 anthologies chosen from around 3,000. From the 20,000 poems in these works, Professor Knoop's team chose poems that were listed in at least three anthologies or mentioned on at least three occasions. This project took two and half years and cost the University €34,900. The list was published on the internet.
In 2002, Directmedia Publishing GmbH ("Directmedia") marketed a CD-ROM entitled "1,000 poems everyone should have" including 876 poems from between 1700 and 1900. Of these poems 856 are mentioned in the list compiled by Professor Knoop. Directmedia used Professor Knoop's list as a guide in selecting the poems for the CD-ROM. They critically examined the University's list and omitted and added certain poems.
An action was brought against Directmedia by Professor Knoop for copyright infringement (as compiler of the list) and by the University for infringement of its database (as maker of the database).
The German Regional Court and the German appeal court ruled in favour of the University and Professor Knoop. Directmedia appealed to the Bundesgerichtshof (the Federal Court of Justice). The Bundesgerichtshof rejected the appeal against the copyright decision but referred the following question on the interpretation of the Directive on the legal protection of databases to the ECJ:
"Can the transfer of data from a database protected in accordance with Article 7(1) of the Database Directive and their incorporation in a different database constitute an extraction within the meaning of Article 7(2)(a) of the Database Directive even in the case where that transfer follows individual assessments resulting from consultation of the database, or does extraction within the meaning of that provision presuppose the (physical) copying of data?"
The ECJ gave its decision on 9 October 2008 following an opinion by Advocate General Sharpston on 10 July 2008.
The ECJ ruled that "extraction" in the Directive is not meant to apply only to the mechanical copying of data without adaptation. In the ECJ's opinion "extraction" can include the transfer of data from one database to another by reproducing data after an on-screen consultation of the first database and assessing this data.
This broad approach protects the investment of the maker of a qualifying database against unauthorised extraction. If the ECJ had given "extraction" a narrow meaning then this would have denied the database maker protection against acts which would threaten his investment.
The main question in assessing whether there has been an "extraction" is whether the transfer is of either a substantial part of a database's protected contents or of insubstantial parts (if the copying was repeated) which resulted in a substantial part of the protected contents.
The method used to extract database information is irrelevant as is the purpose of the extraction. Therefore it would not make any difference if someone copied a database manually or photocopied or pasted its contents.
Having interpreted "extraction" broadly, the ECJ left the issue of copyright infringement for the German courts to decide.
Why this matters:
In giving a wide interpretation to "extraction" the ECJ has confirmed that the objective of the Directive is to protect the investment that a maker has in their database.
This is a welcome decision for companies that invest substantially in compiling their own databases. If a substantial investment has been made then the third party acts that may constitute extraction are interpreted broadly.
However, for marketers using databases for information this will come as an unwelcome decision. No longer can a company think that just because they don't copy data then they can get away with extracting information from databases. The ECJ's broad interpretation in this case will result in many marketing companies, that draw on other databases to compile their own databases, having to find new ways of extracting data so that it does not constitute an infringement. This judgement proves that it may well be a difficult task.
Osborne Clarke, Bristol