Finland: ECJ Rulings in Database Cases

The European Court of Justice (the "ECJ") handed out four closely linked judgments (C-203/02, The British Horseracing Board Ltd and Others v. William Hill Organisation Ltd. the "BHB Case", C-46/02, Fixtures Marketing Ltd v. Oy Veikkaus Ab; C-338/02, Fixtures Marketing Ltd. v. Svenska Spel AB; and C-444/02, Fixtures Marketing Ltd v. Monomeles Protodikio, three latter jointly the "Fixtures Cases") on 9 November 2004 concerning the exploitation of horse racing data and fixtures list data in betting coupons.

In the judgements ECJ sets for the first time authoritative guidelines on the scope of the database right in the European Union.

The EU legislature enacted the relevant directive on the legal protection of databases (96/9/EC, the "Directive") to grant specific or sui generis protection for investments made to collect the data for databases. According to Article 7(1) of the Directive, only a database that ‘shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents’ is entitled to protection. The maker of such a database has an exclusive right to prevent unauthorised ‘extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.’

In all decided cases the ECJ opined that the phrasing "investment in …the obtaining … of the contents" describing a protected database in Article 7(1) of the directive "must be understood to refer to the resources used to seek out existing independent materials and collect them in the database." In particular, Article 7(1) does then not encompass those resources that are used to create the actual information (information of horses to run and information of the dates and times of available timeslots for football matches) that make up the database.

ECJ emphasized hat the fact that the maker of a database is also the creator of the materials comprising the database does not prima facie exclude the existence of database rights. However, the contents of a database can only be protected where the making of the database has required substantial investment independent of the resources used to create the materials contained in the database.

In BHB Case the ECJ also gave important guidelines on the concepts of extraction and re-utilisation. According to the court the concepts of extraction and re-utilisation must be interpreted as referring to: ‘any act of appropriating and making available to the public, without the consent of the maker of the database, the results of his investment, thus depriving him of revenue which should have enabled him to redeem the cost of the investment.’ It then follows that the concepts also encompass instances where the data is extracted and re-utilised from a copy of the original database or otherwise indirectly. The exploitation of a copy of a database may prejudice the investment of the maker of the database just as much as the exploitation of the original source. The ECJ, however, emphasized that the sui generis right is infringed only by acts of extraction and re-utilisation but not consultative use of a database.

Finally the ECJ dealt with the question what is meant by the "substantial part" of the database as evaluated "qualitatively and/or quantitatively". The qualitative assessment refers to the scale of the investment in the obtaining, verification or presentation of that particular data being extracted or re-utilised regardless of whether that data actually represents a quantitatively substantial part of the contents of the database. On this basis even a quantitatively negligible part of the contents of a database may in fact represent significant human, technical or financial investment.

The quantitative element refers to the volume of the extracted data which should assessed against the volume of the contents of the whole of that database.

The ECJ added that as the Directive does not give rise to the creation of a new right in the works, data or materials themselves, the intrinsic value of the materials affected by the act of extraction and/or re-utilisation does not constitute a relevant criterion for the assessment of whether the part as issue is substantial.

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