[Foundation-l] Database rights; a legal ruling in the ECJ

[Ray Saintonge]

Andrew Gray wrote:
> >From the European Court of Justice, a ruling on the much-disputed
> database right.
>
> http://www.out-law.com/page-9497
>
> This may be of some interest, as:
>
> a) it involves Directmedia, with whom I believe we've worked in the
> past and it's interesting to see what they're up to now;
>
> b) it helps explain a bit what the "database right" actually means for
> reusers, such as ourselves.
>
> The ruling is relating to a case where a German university created a
> list of "significant poems" - an extensive academic work - and
> Directmedia then reproduced almost the entirety of this selection as
> part of a similar collection. Astute readers will no doubt spot that,
> well, we often do pretty similar things.
>
> The case doesn't go any further on defining what is or isn't a
> database - the court didn't discuss the issue of whether the list
> constituted one, and accepted it did - but it does help define what
> constitutes *infringement* of the database right.
>
> Basically - as I understand it - reproduction which puts a
> "substantial part" of the original database into another medium is
> held to be potentially infringing, even if it isn't an exact copy and
> even if you've put in some editorial refinement.
>
> (Note potentially - this was an appeal on a point of law and it's been
> returned to the original court for a decision. This case may not be an
> infringement, but other things in this general class of activity might
> well be.)
>
> Possibly not something we need to overly concern ourselves with, but
> it's useful to know about these things.
>   

This still seems to extend database infringement beyond the obvious.  
Would a UK court have arrived at the same result as a German one? They 
rule that "*transfers of insubstantial parts which, by their repeated or 
systematic nature, would have resulted in the reconstruction of a 
substantial part of those contents."  *Who has the burden of proof of 
establishing where the material was extracted?  If we are talking about 
the greatest poems in the German language there is bound to be a 
considerable degree of convergence between the selections of various 
experts.

These database protection laws remain unique to the European Union.  
AFAIK no other country has adopted such laws.  Any attempt to introduce 
them in the United States is bound to face a stiff constitutional 
challenge.  It would amount to introducing a whole new class of 
intellectual property, and would fly in the face of the notion that 
copyright protects expression rather than content.  That was the essence 
of the "Feist" case.

Ec