European Court of Justice Scales Back Scope of Database Rights

On November 10, 2004, the European Court of Justice (ECJ) released four decisions limiting the scope of database rights under the EU Directive on the legal protection of databases (Directive 96/9/EC of the European Parliament and of the Council of March 11, 1996). The decisions represent the first interpretation of the Directive by the ECJ since its introduction in 1996. The Directive provides makers of databases with the right to prevent unauthorized acts of extraction and re-utilization of the whole or substantial part of the contents of a database. This sui generis protection is reserved, however, only for databases for which it can be shown that a substantial investment, quantitatively or qualitatively, has been made in the obtaining, verification or presentation of their contents. Fixtures Marketing Ltd (Fixtures) and the British Horseracing Board (BHB) alleged that their rights under the Directive were infringed by companies using their sporting databases (football and racing schedules, respectively) for the purpose of taking bets on football matches and horseracing. The ECJ ruled that for the sui generis protection to apply, the "investment" in the obtaining, verification or presentation of the contents of a database must be independent of the investment required for the creation of the materials that make up its contents. A professional league is directly involved in creating the data contained in a football schedule – such as the dates and times of various matches – and therefore does not invest any particular effort in the obtaining, verification or presentation of its contents. Likewise, the ECJ found that the resources deployed by the BHB in organizing information about races represented an investment in the creation of the materials. It seems, therefore, if the investment in a database is "indivisibly linked" to the creation of its contents, the maker of the database will not benefit from the protective rights under the Directive. In practical terms, as one observer noted, this means that if the database is merely an inevitable "side-effect" of a business, the investment in putting it together will not be relevant for the purposes of the Directive. Challenges to the ECJ's decision are expected in the UK Court of Appeal. In the meantime, database owners must grapple with the difficult distinction between what is created and what is otherwise obtained, verified or presented. For Legal Media Group article "ECJ limits database protection", see: http://www.legalmediagroup.com/default.asp For more information on the ECJ's decisions, see: http://curia.eu.int/en/actu/communiques/cp04/aff/cp040089en.pdf. Summary by: Rosa Kim