Is an estate agent’s on-line database of properties for sale unprotected by database right? ‘Yes, if it existed before it went on-line’ said a Dutch judge.
Who: NVMvDe TelegraWho: NVMvDe Telegraaf and Havas/Cadres on line v Keljob
Where: Court of Appeal at The Hague and Paris Commercial Court
When: December 2000
Litigation over unauthorised inter-website links had quite different outcomes in Holland and France recently. At the Hague, estate agents NVM were in action against the Dutch newspaper De Telegraaf (no relation) over links into their website via De Telegraaf’s “Elcheapo” search engine. The NVM site contained a substantial database of properties for sale and following previous cases where database right had been successfully used as a weapon against unauthorised website links, NVM sued De Telegraaf for infringement of the database right they said existed in the property database. But the court threw out the claim. It said that under the database directive and the equivalent Dutch legislation there had to have been “substantial investment” in the database by its owner. Here there had been no such investment as the data on the site was nothing more than a slavish copy of MVN’s off-line property database. As the off-line resource had been needed by MVN anyway for its own internal business purposes, there was insufficient separate investment in the on-line database for it to qualify for protection.
In France the scenario was the by now classic stand-off between job websites. Keljob enabled searchers to go deep into the Cadres site and check out jobs available, by-passing the Cadres homepage. While the Cadres vacancies were being viewed, alterations made to the content by Keljob’s software removed any indication on screen that the site being visited was cadresonline.com. The court does not appear to have specifically considered database right, but it still found for Cadres and ordered Keljob to cut the links on pain of a £4790 per day fine. Here was a clear case, the Court held, of unfair trading practice, parasitic behaviour and misappropriation of the work and financial efforts of another.
This would always be the result, the Court said, of establishing links which changed the nature of the content of the site being visited, misled visitors as to the source of the site and did not notify visitors clearly that they were now leaving the site.
Why this matters:
While the Dutch verdict on database right is mysterious to say the least and may be subject to appeal, it is a reminder that Europe’s courts are still getting to grips with database right. Those seeking to police unauthorised links would for the moment do well to rely on additional causes of action if possible, such as passing off or breach of cable transmission right, to maximise their prospects against deeplinkers.
Whether the recently signed off Directive on “Copyright and related rights in the information society” will make any difference here is a subject we will focus on soon here at marketinglaw.co.uk.