Poetry in motion: database right back in the limelight

If you thought that the European sui generis database right was dead, welcome to the resurrection. Today Advocate General Sharpston delivered her Opinion in Case C-304/07 Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg, a reference for a preliminary ruling from the German Bundesgerichtshof.

Right: this picture says it all. Cats may come and go, sui generis database right refuses to die --- and poetry continues to haunt the living

The facts run like this. Professor Dr Ulrich Knoop, of the German Department of the Albrecht-Ludwigs-Universität Freiburg, directed the ‘vocabulary of the classics’ project, which led to the publication of the Freiburg Anthology, a collection of verse from 1720 to 1933, as part of this project, Knoop drew up a list of verse titles that was published on the internet under the heading ‘The 1,100 most important poems in German literature between 1730 and 1900’. This list, which served as a basis for the Freiburg Anthology, set out, in order of the frequency with which the poem is mentioned, the author, title, opening line and year of publication for each poem.

What was the professor's methodology? From some 3,000 published anthologies of poetry, 14 were selected. That selection was supplemented by the bibliographic compilation of 50 German-language anthologies by Ms Anneliese Dühmert under the title ‘Who wrote that poem?’, which yielded some 20,000 poems. Poems which were listed in at least three anthologies or were mentioned on at least three occasions in Ms Dühmert’s bibliographic compilation qualified for inclusion in the list. As a precondition for that statistical analysis, the titles and opening lines of the poems were standardised and a list of all verse titles compiled. Finally, the poems were referenced to the works in which they were published and the year of their composition was established. This task, completed under Knoop's direction, took around two and a half years and cost the University EUR 34,900.

Directmedia sold a CD-ROM called ‘1,000 poems everyone should have’, which appeared in 2002. Of the poems on the CD-ROM, 876 were from 1720 to 1900 and, of these, 856 appeared in the list of verse titles generated by the ‘vocabulary of the classics’ project. In selecting the poems for inclusion on its CD-ROM, Directmedia used the list of verse titles from the ‘vocabulary of the classics’ project as a guide. It examined attentively the selection made by Knoop, omitting some of the poems listed and adding others of its own choice. Directmedia took the actual verse texts from its own digital resources. Professor Knoop and the University took the view that, in reproducing and distributing its CD-ROM, Directmedia had infringed the copyright of Professor Knoop as compiler of an anthology and the related right of the University as maker of a database. They sought an order requiring Directmedia to desist from reproducing and/or distributing the CD-ROM ‘1,000 poems everyone should have’, as well as damages and delivery up for destruction.

The Landgericht ruled in favour of Knoop and the University. Directmedia’s appeal to the Oberlandesgericht failed so it appealed on a point of law to the Bundesgerichtshof. In its initial judgment the Bundesgerichtshof dismissed the appeal against the judgment for copyright infringement granted in favour of Knoop. It then proceeded to consider the appeal against the database infringement judgment granted in favour of the University. After hearing the arguments of both sides the bundesgerichtshof referred the following question to the Court:

"Can the transfer of data from a database protected in accordance with Article 7(1) of Directive 96/9/EC and their incorporation in a different database constitute an extraction within the meaning of Article 7(2)(a) of that directive even in the case where that transfer follows individual assessments resulting from consultation of the database, or does extraction within the meaning of that provision presuppose the (physical) copying of data?"

Elearnor Sharpston advised the ECJ to rule as follows:

"Extraction’ within the meaning of Article 7(2)(a) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases does not presuppose the (physical) copying of data;

– In order to constitute an ‘extraction’ within the meaning of Article 7(2)(a) of the directive, it is immaterial whether the transfer of data from a database protected in accordance with Article 7(1) of the directive and their incorporation in a different database takes place following individual assessments of the data after consulting the database".

The IPKat is still in a state of shock at seeing serious analysis of the provisions of the Database Directive again. He marvels anew at the verbosity and complexity of its minutiae; indeed, this is a perfect example of disproportionality between the simplicity of the facts and the complexity of the means of their resolution. Merpel however notes the comments of the Advocate General on the need for legal certainty:

"56. The referring court suggests that legal certainty is better served if (as it proposes) there is no ‘extraction’ if the database is used merely as a source of information, even where that use is particularly extensive. It argues that users who do not obtain their data directly from the database itself, but from derived sources, are often unable to tell whether (and if so, how) those data have been taken from a protected database, and whether the data adopted constitute a substantial part of a database or were obtained by unauthorised repeated and systematic extraction.

57. As I understand it, protection of legal certainty is here being deployed as an argument against holding that indirect copying of databases is an infringement of the sui generis right. The argument is, at first sight, not unattractive. However, the Court has already implicitly decided that considerations of legal certainty are not necessarily conclusive, inasmuch as it has already held that direct access to the original database is not necessary for there to be an unauthorised ‘extraction’. Hence, indirect copying of a protected database can indeed infringe the sui generis right".

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