1 June 2012CopyrightAurélia Marie

Originality and the protection of databases: a CJEU definition

Such protection is of two kinds: (i) copyright, provided that the database is an original work; and/or (ii) a sui generis right granted to the producer of a database as a return on the investment made for obtaining, verifying or organising the presentation of the database, allowing it—under certain conditions—to prohibit the extraction, or partial or complete unauthorised use, of the content by third parties.

Asked about the copyright protection given to a database relating to the establishment of football fixture lists, the Court of Justice of the European Union (CJEU) specified the conditions under which such protection is possible, in a decision of March 1, 2012 (Case C-604/10: Football Dataco Ltd et al v Yahoo UK Ltd et al). Indeed, in the present case the national jurisdiction had refused to apply sui generis database right protection due to the lack of substantial investment (a necessary condition for such protection to be claimed).

According to Article 1§2 of the Directive of 1996, a database is “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”.

The CJEU then recalled that it had already positively decided on the qualification of a database to a football fixture list, in the Fixtures Marketing Ltd case of November 9, 2004 (Case C-444/02, Fixtures Marketing Ltd v OPAP). In that case, the court had also decided that the respective bases of protection within the meaning of the Directive—copyright and sui generis database right—are independent of each other. Hence, protection by one does not exclude protection by the other.

Basing its arguments on Article 3§1 and the preamble of the directive, the court considered that only the structure of the database, ie, the “choice or the organisation of the data”, is eligible for protection by copyright and that, therefore, the content of the database and the data itself, which the content is made of, are excluded from such protection.

The court justified its arguments by the objective of the directive, which is not to protect the elements liable to be collected into the database, but to encourage the implementation of storage systems and data processing systems, in order to develop the market in information.

“THE COURT HAD ALSO DECIDED THAT THE RESPECTIVE BASES OF PROTECTION WITHIN THE MEANING OF THE DIRECTIVE— COPYRIGHT AND SUI GENERIS DATABASE RIGHT—ARE INDEPENDENT OF EACH OTHER.”

The court further decided that the question was not to determine whether intellectual effort and know-how had been dedicated to the creation of the database. The issue of originality must be the only issue taken into account for acknowledging copyright protection and that criterion is fulfilled if, through the choice or the organisation of such data, an original expression of the creative freedom of the author of the database is present.

Similarly, it is “immaterial that the choice or the organisation of such data includes, or not, a significant adjunction to those data”. It is necessary only that an intellectual creation be made by free and creative choices in the organisation of the database in its entirety, and not in the constituent data.

National jurisdictions must now verify if the choice of organisation of the data “constitutes an original expression of the creative freedom of the author”.

In relation to the second addressed question, regarding the possible applicability of rights resulting from prior national legislation, the CJEU decided that the harmonisation operated by the directive regarding the copyright protection of databases does not permit protection to be granted by national legislation under conditions other than those stated in the directive.

Hence, in the present decision, the CJEU provides an analytical grid for deciding on the existence of copyright regarding databases, to which the national jurisdictions will have to conform.

Nevertheless, it must be recalled that the most important effect of the directive of 1996 is the creation of a sui generis database right and of a monopoly created for the benefit of the producers of those databases in order to protect, this time, the content of the created database, when it is the result of substantial quantitative or qualitative investment.

Such a right therefore distinguishes itself from copyright in the very object of the protection but also in its owner, who is not the author, but the producer of the database, and the 15 years’ duration of the protection.

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