Plaintiffs operate the Republic of Austria’s online database containing the official Austrian company register. The defendants had used data from this database to update their own databases (note: defendants are the same as in the case decided by the Supreme Court on 9 April 2002, see below). The court held that although the defendants had indeed infringed the Republic’s database right, this did not mean that they had acted unlawfully (i.e. competed unfairly) against the plaintiffs.

Plaintiff, the Republic of Austria, offered an online version of the official Austrian company registry. The defendants used data from the registry to update their own databases. According to the court, the defendants had extracted a substantial part of the database without paying an appropriate remuneration. The Court rejected application by analogy of the copyright exemption which allows free use of government information. According to the Court, this would not have been allowed under the Database Directive’s exhaustive set of permitted limitations. The Court concludes that defendants have infringed the Republic’s sui generis database right. Defendants are enjoined from extracting data without paying adequate remuneration. However, the Republic may not demand inappropriate remuneration for the extraction. In the light of the ‘essential facilities’ doctrine, this would otherwise amount to an abuse of a dominating position on the market, in view of the defendants’ complete dependence on the data of the Republic’s website.

Plaintiff maintained a website containing information on holiday houses located on a Caribbean island with links to independent websites. The court held that the information had been systematically arranged because a description of the houses was given per island. It attached special significance to the fact that the site gave access to different websites, thereby making the information ‘independently accessible’. Having found that the website constituted a ‘database’, the court awarded copyright protection by applying a classic originality test.

Plaintiff had published a business directory (‘yellow pages’) on CD-ROM. Defendant ran a web site for the building industry called ‘www.baukompass.at’, employing a search engine which used data from the CD-ROM. According to the court, the defendant had used a substantial part of the contents of plaintiff’s database (i.e. the data relating to the building sector), thereby violating its database right. The court also noted that defendant’s web site, including the data extracted from the CD-ROM, might also qualify for database right by itself, provided a substantial investment had been in made in expanding the database. However, departing from the Austrian Supreme Court’s holding in the C.-Compass case,  the Court clarified that such subsequent substantial investment does not amount to ‘free adaptation’ of plaintiff’s database.

The appellant had developed a database model for use on a website for the respondent. The latter had made substantial changes to this database.
The court held that the appellant does not violate the respondent’s database right if the intended changes, qualitatively and quantitatively, are the results of substantial investment. (A year later, the Austrian Supreme Court changed its view on this legal question in the ‘www.baukompass.at’ decision, see above).

Both parties run shops in home decoration materials. The Court held that a palette of colors, that neither has a system to acquire an individual color without having to regard the whole ensemble of colors, nor has a system of cards, nor an index that gives direct access to an individual color, does not respond to the legal definition of a database.
Each individual color cannot be considered as a (copyright) protected work, since all colors already exist in nature and are therefore not susceptible to protection.
On the other hand, a selection of 49 colors, that (in its decorative distinction) carries the personal mark of the creator, could possibly be regarded as an original creation, if the selection on its own is to be regarded as original.

Plaintiff and defendant both maintained websites offering information on movie theatres, including the time schedules of cinemas across Belgium. The defendant had terminated a contract to purchase the schedules from the plaintiff. However, after termination the defendant continued to extract data from the plaintiff’s website. The court saw a substantial investment in the weekly collecting and processing of the information, and held that the investment must have been substantial, given the fact that before terminating the contract the defendant was prepared to pay to receive the information from the plaintiff. Although the defendant had used only a non-substantial part of the database, the defendant had extracted and re-utilized repeatedly and systematically from plaintiff’s database. According to the court this amounted to infringement of plaintiff’s sui generis database right.

Plaintiff had collected and methodically arranged data about 530 sculptures in Brussels into a card system, in preparation of a book that defendant was going to publish. However, before the book was completed, defendant and plaintiff decided to go their separate ways. Defendant subsequently used parts of the database to write and publish the book. According to the Court of Appeal of Brussels (decision of 3 May 2000) plaintiff’s card system was protected by copyright, because the structure of the data compilation was the result of original selection and intellectual creation; defendant was therefore found to have infringed plaintiff’s copyright. The Supreme Court confirmed the Court of Appeal’s decision, but underscored that copyright protects merely the structure of a database, not the actual data itself. (source: Auteurs & Media 2001-3, p. 353-357)

Syllepsis published legal journals containing reports on and brief summaries of Belgian case law, including the ‘ju.d.@.s.’ legal database. Wolters Kluwer had included summaries made by plaintiff in its online database, which listed references to publications to Belgian case law accompanied by a brief summary of each case. Did Kluwers Wolters violate the plaintiff’s database right? The court confined itself to a discussion of database copyright, and concluded that the plaintiff had failed to demonstrate that Wolters Kluwer had violated its copyright.

This dispute concerned the unauthorized extraction and re-utilization of a pamphlet with information on ‘self-help’ groups intended for the French speaking community. The defendants had published their own (national) list of self-help groups, inter alia, by copying plaintiff’s pamphlet including even the mistakes. After confirming that the list constituted a database, the court ruled that plaintiff was the author of the (non-electronic) database. The defendant was ordered to cease infringing activities (source: Auteurs & Media 1999-3, p. 370-73).

The sui generis right appears to be inspired, at least in part, by the so-called catalogue rule, a traditional (and unique) feature of Scandinavian law. The copyright laws of all five Nordic countries contain specific provisions protecting non-original compilations of data, such as catalogues, tables and similar compilations, provided they comprise “a large number” of items. For the Nordic countries, therefore, the Database Directive’s impact is relatively limited. Pursuant to Recital 52 of the Directive, the Nordic countries may retain all existing exceptions to the catalogue rule.

The Danish web portal Bolig.ofir.dk had made deep links to real estate advertisements on the internet, including advertisements from the market leading estate agency chain Home.
The Court held that the establishment of the Home.dk database may largely be considered to have been derived from the real estate chain’s main business, the sale of real property, use for advertising and presentation of the properties offered. In terms of database law the Home.dk website consists of collected, already existing material. Therefore, the database protection established by means of Article 7(1) Database Directive does not cover this database.
If it is also taken into consideration that Bolig.ofir.dk’s users –  who can choose to switch to either the front page or, if using a deep link, directly to the property advert page on the petitioner’s homepage where no banner adverts are used – are informed of the approaching switch before the switch to the page of the real estate agent is effected, the Court does not find that the respondent is infringing §1 of the Marketing Act by providing a deep link on Bolig.ofir.dk for the users.

In July 2002, the first Danish decision on the database right was reported. The plaintiff operated a search engine ‘Newsbooster.com’ that deep-linked users directly to articles on other web site, bypassing the other sites’ homepages – and thereby the banner ads. According to the Copenhagen Court, this practice infringed the sui generis database rights of the owners of such other sites.

This reference for a preliminary ruling concerns the interpretation of the provisions of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. The reference was made in the course of proceedings brought by Fixtures Marketing Limited (Fixtures) against Oy Veikkaus Ab (Veikkaus). The litigation arose over the use by Veikkaus, for the purpose of organizing betting games, of information taken from the fixtures lists for the English football leagues.

In the light of the uncertainty as to whether the fixture list at issue is a protected database, and if it is, as to the type of action which constitutes an infringement of the protection provided for by the directive, the Vantaan karajaoikeus decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

(1) May the requirement in Article 7(1) of the directive for a link between the investment and the making of the database be interpreted in the sense that the obtaining referred to in Article 7(1) and the investment directed at it refers, in the present case, to investment which is directed at the determination of the dates of the matches and the match pairings themselves and, when the criteria for granting protection are appraised, does the drawing up of the fixture list include investment which is not relevant?

(2) Is the object of the directive to provide protection in such a way that persons other than the authors of the fixture list may not, without authorization, use the data in that fixture list for betting or other commercial purposes?

(3) For the purposes of the directive, does the use by Veikkaus relate to a substantial part, evaluated qualitatively and/or quantitatively, of the database, having regard to the fact that, of the data in the fixture list, on each occasion only data necessary for one week is used in the weekly pools coupons, and the fact that the data relating to the matches is obtained and verified from sources other than the maker of the database continuously throughout the season?

See Case Law from the European Court of Justice

The defendant, betting agency Veikkaus, used information from the plaintiff’s fixture list of the English Premier League, for its sport betting service. Fixtures claimed database right to its fixture list, arguing that the list is a protected database in the sense of the Database Directive. Veikkaus however argued that the investments made in the production of the collection of data were not specifically directed at the obtaining, verification and presentation of the database. The database, arguably, is no more than a ‘spin-off’ of activities falling outside the scope of database protection, and therefore not eligible for database protection. The District Court of Vantaa decided to put three questions to the European Court of Justice for a preliminary ruling (case C-46/02).

See: ECJ – C-46/02, 9 November 2004