09 November 2004

Database Protection

Thanks to Jeremy and Ilanah at the IPKat for pointing to four important opinions (and one thorougly unimportant press release) on database rights issued today by the European Court of Justice. At least this time the bloody things were issued in English!

Why are these important? Because they tread on a dangerous, incredibly lucrative type of database: The re-presentation of otherwise publicly available factual data. These opinions all deal with fixture lists (schedules) for horseracing and football (the real kind, not the kind played Over Here with the sissy protective gear). The organizations that made up the schedules objected that the re-presentation by various bookmakers in a form convenient for the betting public infringed their sui generis database rights in the fixture lists themselves.

Not so fast, said the European Court of Justice. <SARCASM> In a set of opinions that tries mightily to avoid ever referring to the language or concepts of Feist, the Court reaches a remarkably similar conclusion at the functional level. It's kind of ironic that the Supreme Court of the "isolationist" US acknowledges European law as persuasive authority, but that the "internationalist" European Court of Justice does not. </SARCASM> In any event, the ECJ made rather more explicit (and critical) the distinction between the resources that go into creating the underlying data and the resources—"investment in the creation of materials contained in [the] database"—and the resources that would be expended in "verification" of the data extracted and re-presented by the purported infringer. If the latter investment is not both substantial and independent of the former, the purported infringement is "insubstantial" under the European directive. Although a serious-enough "insubstantial" reuse might be enought to turn itself into a "substantial" infringement, these were not. Here's the critical language in one of the four cases:

The expression "investment in … the … verification … of the contents" of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The resources used for verification during the stage of creation of data or other materials which are subsequently collected in a database, on the other hand, are resources used in creating a database and cannot therefore be taken into account in order to assess whether there was substantial investment in the terms of Article 7(1) of the directive.

British Horseracing Board v. William Hill Org. Ltd., No. C-203/02 (ECJ 09 Nov 2004) par. 34 (ellipses in original).

That sure sounds like a rejection of "sweat of the brow" to me. So, for that matter, does the result: The bookies' various fixture lists do not constitute an infringing use of materials. In practice, this might mean that Westlaw and Lexis have no database protection in Europe for the text of the decisions, as their effort in "verification" of the text is not independent of obtaining the text from the various courts. That's not to say no protection at all; just that this theory doesn't seem to reach that far. And, frankly, they can have their headnotes and concept markers; they're seldom helpful without reading the whole case anyway.