The European Court of Justice (ECJ) has ruled that the on-screen consultation of a protected database, combined with the transfer of elements from it, may, after an individual balancing exercise, constitute an "extraction" which the producer of the database may prohibit, in particular if it leads to the transfer of a substantial part of the contents of the protected database.
"The 1 100 most important poems in German literature between 1730 and 1900″ is a list of poetry titles published on the internet by the University of Freiburg im Breisgau. The list was compiled as part of the "Classical Vocabulary" project under the direction of Prof. Knoop. The university, which bore the costs of the project totalling 34,900 euros, considers that its rights have been infringed by the distribution of a CD-ROM entitled "1000 Poems Everyone Must Have" by the company Directmedia. Of the poems on this CD-ROM, 876 date from the period between 1720 and 1900; of these, 856 are also named in the list of poem titles compiled by Mr Knoop.
Directmedia used this list as a guide when compiling the poems on its CD-ROM. It omitted some of the poems listed there, added others and critically reviewed the selection made by Mr Knoop in each case. The poem texts themselves were taken from Directmedia's own digital material.
The Federal Court of Justice (Bundesgerichtshof, BGH), which has already upheld the action brought by Prof. Knoop as the creator of a collective work, is of the opinion that the decision of the dispute, insofar as Directmedia and the university are opposed, depends on the interpretation of the database directive . The Federal Court of Justice wonders whether the taking over of the contents of a database in such circumstances constitutes an "extraction" within the meaning of the Directive which the maker of the database can prohibit.
In today's judgment, the Court points out that, where the maker of a database makes its contents available to third parties, even in return for payment, he may not prevent those third parties from consulting the database for information purposes. It is only where the display of the contents of the database on screen requires the permanent or temporary transfer of all or a substantial part of those contents to another medium that the consultation in question may be made subject to the maker's authorisation.
The concept of "extraction", which the maker of a protected database may prohibit, must be understood as covering any unauthorised appropriation of all or part of the contents of a database. The means and forms used are irrelevant.
In this context, it is irrelevant for the question of whether there is a "taking" whether the transfer is based on a technical process of copying the contents of a protected database such as an electronic, electromagnetic, electro-optical or similar process. Copying the contents of such a database onto another data carrier, even in the form of transcription, fulfils the offence of taking in the same way as a file download or photocopy. Moreover, the term "extraction" cannot be limited to acts involving the transfer of the whole or a substantial part of a protected database.
Finally, the fact that elements contained in one database are transferred to another database only after critical examination by the originator of the transfer does not preclude a finding that a transfer of elements from the first database to the second is taking place.
The Court concludes that the transfer of elements from a protected database to another database on the basis of an on-screen consultation of the first database and a detailed consideration of the elements contained therein may constitute a 'taking' which the maker of the database may prohibit, in so far as that operation involves the transfer of a substantial part , in qualitative or quantitative terms, of the contents of the protected database or the transfer of insubstantial parts which, by its repetitive and systematic nature, may have the effect of reconstituting a substantial part of those contents; it is for the referring court to determine whether that is the case.
Judgment of the Court of Justice in Case C-304/07
Source: ECJ Press Release No. 67/08 of 9 October 2008
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
E-Mail: m.ullrich@goldberg.de
