The European Court of Justice (ECJ) has ruled that a screen query of a protected database, combined with the extraction of elements from it after a detailed assessment, can constitute an „extraction“ that the database producer can prohibit, especially if it leads to the transfer of a substantial part of the content of the protected database.
„The 1,100 Most Important Poems of German Literature between 1730 and 1900“ is a list of poem titles published online 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 project costs totaling 34,900 Euros, considers its rights infringed by the distribution of a CD-ROM titled „1000 Poems Everyone Must Have“ by 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 based the compilation of poems on its CD-ROM on this list. It omitted some of the listed poems, added others, and critically reviewed Mr. Knoop's selection. Directmedia sourced the poem texts themselves from its own digital material.
The Federal Court of Justice (BGH), which had already granted Professor Knoop's claim as the creator of a collective work, holds that the resolution of the dispute between Directmedia and the university hinges on the interpretation of the Database Directive . The BGH queries whether the appropriation of database content under such circumstances constitutes an 'extraction' within the meaning of the Directive, which the database producer is entitled to prohibit.
In its judgment today, the Court states that if a database producer makes its content accessible to third parties, even for remuneration, it may not prevent those third parties from querying the database for informational purposes. The relevant query can only be made subject to the producer's authorization if the display of the database content on screen necessitates the permanent or temporary transfer of all or a substantial part of that content to another data carrier.
The term 'extraction', which the producer of a protected database is entitled to prohibit, is to be understood as encompassing any unauthorized appropriation of all or part of the content of a database. The specific means and forms employed are irrelevant.
In this context, whether an 'extraction' has occurred is independent of whether the transfer relies on a technical copying process for the content of a protected database, such as an electronic, electromagnetic, electro-optical, or similar method. Copying the content of such a database to another data carrier, even through manual transcription, constitutes an extraction, as do file downloads or photocopies. Moreover, the term 'extraction' cannot be restricted to actions involving the transfer of all or a substantial part of a protected database.
Finally, the fact that elements from one database are transferred to another only after critical review by the author of the transfer does not negate the finding that a transfer of elements from the first database to the second has occurred.
The Court concludes that the transfer of elements from a protected database to another database, resulting from a screen query of the first database and a detailed assessment of its contained elements, can constitute an 'extraction' that the database producer is entitled to prohibit, provided that this operation involves the transfer of a qualitatively or quantitatively substantial part of the content of the protected database or the transfer of insubstantial parts which, through their repeated and systematic nature, may have led to the re-creation of a substantial part of that content; the determination of whether this is the case falls to the referring court.
Judgment of the Court 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
