Physical and technical characteristics in a databse may be interpreted as indication of extraction
05-03-2009 Print this page
The distinction between permanent transfer and temporary transfer lies in the duration of storage on another medium of materials extracted from the original database. There is permanent transfer when those materials are stored in a permanent manner on a medium other than the original medium, whereas the transfer is temporary if the materials are stored for a limited period on another medium, such as the operating memory of a com-puter.
The time at which extraction from an electronic database takes place is the time at which the materials being extracted are placed on a medium other than that of the original database, independently of whether they are placed there permanently or temporarily. The objective pursued by the act of transfer is immaterial for the purpose of assessing whether there has been an extraction.
"46. (...) Thus, it is of little importance that the act of transfer in question is for the purpose of creating another database, whether in com-petition with the original database or not, or that the act is part of an activity, whether commercial or not, other than the creation of a database (see, to that effect, Di-rectmedia Publishing, cited above, paragraphs 46 and 47, and the case-law cited therein)."
The nature of the computer program used to manage two electronic databases is not a factor in assessing the existence of extraction within the meaning of Article 7 of Directive 96/9.
The fact that the physical and technical characteristics present in the contents of a database also appear in the contents of another database may also be interpreted as an indication of the existence of a transfer between the two databases and therefore, of an extraction. The fact that materials might also have been collected directly by the maker of the second base from the sources used by the first maker, may constitute circumstantial evidence of extraction.
"52 .It should also be stated, as the Bulgarian Gov-ernment does, that the fact that materials obtained by the maker of a database from sources not available to the public also appear in a database made by another person is not, as such, sufficient to prove that there has been a transfer from the first database to the second, having regard to the possibility that those materials might also have been collected directly by the maker of the second base from the sources used by the first maker. That fact may, none the less, constitute circum-stantial evidence of extraction."
Where there is a body of materials composed of separate modules, the volume of the materials allegedly extracted and/or re-utilised from one of those modules must be compared with the total contents of that module; otherwise comparison between volume and total contents.
"74. (...) Article 7 of Directive 96/9 must be interpreted as meaning that, where there is a body of materials com-posed of separate modules, the volume of the materials allegedly extracted and/or re-utilised from one of those modules must, in order to assess whether there has been extraction and/or re-utilisation of a substantial part, evaluated quantitatively, of the contents of a database within the meaning of that article, be compared with the total contents of that module, if the latter consti-tutes, in itself, a database which fulfils the conditions for protection by the sui generis right. Otherwise, and in so far as the body of materials constitutes a database protected by that right, the comparison must be made between the volume of the materials allegedly extracted and/or re-utilised from the various modules of that da-tabase and its total contents."
The fact that the materials were obtained by the maker of that database from sources not accessible to the public may affect the classification of those materials as a substantial part.
"74. (...) The fact that the materials allegedly extracted and/or re-utilised from a database protected by the sui generis right were obtained by the maker of that data-base from sources not accessible to the public may, according to the amount of human, technical and/or fi-nancial re-sources deployed by the maker to collect the materials at issue from those sources, affect the classi-fication of those materials as a substantial part, evaluated qualita-tively, of the contents of the database concerned, within the meaning of Article 7 of Directive 96/9."
The fact that part of the materials contained in a database are official and accessible to the public does not relieve the national court of an obligation to verify whether the materials constitute a substantial part.
"74. (...) The fact that part of the materials contained in a data-base are official and accessible to the public does not relieve the national court of an obligation to, in as-sessing whether there has been extraction and/or re-utilisation of a substantial part of the contents of that database, to verify whether the materials allegedly ex-tracted and/or re-utilised from that database constitute a substantial part, evaluated quantitatively, of its contents or, as the case may be, whether they constitute a sub-stantial part, evaluated qualitatively, of the database inasmuch as they represent, in terms of the obtaining, verification and presentation thereof, a substantial hu-man, technical or financial investment."
IPPT20090305, ECJ, Apis v Lakorda
C-545/07 - ECLI:EU:C:2009:132
