More clarity for the Database Directive
European Court of Justice delivered on 9th November its long awaited judgement on the four cases concerning the interpretation of some of the provisions of the 96/9/EC Directive on legal protection of databases. All four cases concerned in particular the sui generis protection for a database whose creation required substantial investment. All cases refer to the scope of protection in the context of sporting databases namely, football and horseracing. Fixuture Marketing having the right to grant licences for exploitation outside of the UK of fixture lists for the top English and Scottish football leagues and BHB body organising British horse racing industry and compiling databases with detailed information about the races and the official register of thoroughbred horses in the UK. The two companies having the right of legal protection of their databases considered that the others namely bookmaker and football fixture companies by using BHB's and Fixture Marketing databases for the purposes of taking bets on football matches or horseracing have infringed their right conferred on them by the directive. Finish, Swedish, Greek and English Court while considering the proceedings pending referred several questions to ECJ on the subject of the scope of protection granted by the directive. The Court in its ruling considered that although both football fixture lists and horseracing information compiled by Fixture Marketing and BHB are considered as databases under the understanding of the directive, finding and collecting the data which make up such a list do not require any particular effort on the part of the either professional football leagues or horse races. Those activities are directly linked to the creation of those data, as football leagues and BHB are responsible of organising of football league fixtures and horse races and thus collecting all relevant information is primarily done for those purposes. Thus, 'neither the obtaining, verification, nor presentation of the contents of a football fixture or parts of horseracing information attests to substantial investment which could justify protection by the sui generis right provided by the directive'. ECJ considered in its final judgment that ' the definition of substantial investment' which gives rise to protection for the maker of a database against unauthorised acts of copying and distribution to the public covers only the work involved in seeking collecting, verifying and presenting existing materials and not the resources used to create the materials which make up database.' This final conclusion by the court seems to be positive for directory publishers as it prevents some of the bodies having monopoly on some of the information to block its obtaining. Also for B2C directories such interpretation might imply that the databases compiled by Telecom companies are the immediate result of their daily economic activities of providing telephone connections and thus they are not considered as protected by the sui generis right. However some further implications of the the ruling have to be more deeply examined to evaluate future implications for other legislation. It remains to be seen how will the European Commission use this ruling in the review of the directive that is planned for summer 2005.