The Court of Justice of the EU in its judgment of 9 November 2004 Case C-203/02 The British Horseracing Board Ltd and Others v William Hill Organization Ltd, ruled that the expression “investment in … the obtaining … of the contents” of a database in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database.

The expression “investment in … the … verification … of the contents” of a database in Article 7(1) of Directive 96/9/EC must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The resources used for verification during the stage of creation of materials which are subsequently collected in a database do not fall within that definition. The resources used to draw up a list of horses in a race and to carry out checks in that connection do not constitute investment in the obtaining and verification of the contents of the database in which that list appears.

The terms “extraction” and “re-utilisation” as defined in Article 7 of Directive 96/9/EC must be interpreted as referring to any unauthorised act of appropriation and distribution to the public of the whole or a part of the contents of a database. Those terms do not imply direct access to the database concerned. The fact that the contents of a database were made accessible to the public by its maker or with his consent does not affect the right of the maker to prevent acts of extraction and/or re-utilisation of the whole or a substantial part of the contents of a database.

The expression “substantial part, evaluated … quantitatively, of the contents of [a] database” in Article 7 of Directive 96/9/EC refers to the volume of data extracted from the database and/or re-utilised and must be assessed in relation to the total volume of the contents of the database. The expression “substantial part, evaluated qualitatively … of the contents of [a] database” refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. Any part which does not fulfil the definition of a substantial part, evaluated both quantitatively and qualitatively, falls within the definition of an insubstantial part of the contents of a database.

The prohibition laid down by Article 7(5) of Directive 96/9/EC refers to unauthorised acts of extraction or re-utilisation the cumulative effect of which is to reconstitute and/or make available to the public, without the authorisation of the maker of the database, the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment by the maker.

Categories: computer law | database protection law | Directive 96/9/EC | e-law issues | EU law | Judgments of Court of Justice of the EC.