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The European Database Directive In Perspective

by T. Alexander Key

A great deal of modern lawmaking is a matter of cause and effect: after a disaster, lawmakers gather to enact a measure that will prevent its re-occurrence. Indeed, lawmaking is so often “management by crisis” these days as to be nearly self-evident. It was therefore surprising then when, in the mid-1990s, the European Union considered sweeping database reforms in response to the mere portent of crisis. Proponents argued that the existing legal regime for European databases—in truth, a motley of regimes that diverged across Member States—did not safeguard investment in databases, and would eventually lead to economic ruin. In 1996, proponents thus hailed the newly stamped European Database Directive as a triumph of ambition: the Directive was designed not only to preclude such ruin, but to stimulate database creation and competition. Europe, it seemed, was poised to lead the information-laden world.

Ironically, after nearly a decade, attainment of these objectives remains unconfirmed. To the contrary, questions about the Directive abound in ever greater number. Was the Directive even necessary in the first place? Has the Directive been the boon that lawmakers expected? And what have been the costs along the way?

This paper analyzes the extant case law and empirical evidence in order to address these seminal questions. In Part I, the statutory framework of the E.U. Database Directive is briefly sketched. In Part II, observations are culled from cases applying that framework, as well as from empirical studies on the Directive. Finally, in Part III, the European experience is summarized, with an eye towards identifying lessons for the U.S., which has long considered—and is still considering—preemptive database reforms of its own.

I. The European Database Directive.

The European Database Directive “concerns the legal protection of databases in any form.”[1] By definition, protection extends to any “collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible,”[2] so long as there was substantial investment “in either the obtaining, verification or presentation of the contents.”[3] Thus, no protection attaches to materials that are unorganized, whose elements are accessible only in combination or not at all, or for which there was only insubstantial investment.

The database right inheres in “the maker of a database,” that is, in “the person who takes the initiative and the risk of investing.”[4] Principally, that right is “to prevent extraction and/or reutilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”[5] However, a maker may also prevent extraction or re-utilization of insubstantial parts if it is “repeated and systematic” or “conflict[s] with a normal exploitation … or … unreasonably prejudice[s] the legitimate interests of the maker of the database.”[6]

Two important strictures serve to limit a maker’s database right. First, a maker has no right to prevent acts that are statutorily exempted.[7] Second, the right is valid for only 15 years from the date of a database’s completion or first availability to the public, whichever is later.[8] In practice, however, judges may gloss additional strictures onto the database right.

II. Observations from the Case Law and Empirical Evidence.

Because the European Council ratified the Database Directive in March of 1996, and every Member State adopted it into its national legislation, [9] there is by now a sizeable body of case law applying the Directive. Furthermore, numerous empirical studies of the Directive’s effects on the European database industry have been conducted. From this evidence—evidence from the courtroom, marketplace, and university—observations about the Directive may be made, and the reality of the Directive illuminated.

A. Nearly any collection of information qualifies for protection under the Directive.

In applying the Directive, European courts have tackled a spectacular range of materials. And, based upon their decisions, it seems that most courts have infrequently, if ever, encountered a collection that they didn’t like.

What types of collections have been protected under the Directive? Foremost, no matter their form(be they online, digital, or written(protection may extend to telephone directories[10] and collections of legal materials (including statutes, cases, and texts).[11] In addition, with respect to online materials, protected databases include collections of company registers, [12] movie schedules, [13] news articles and headlines, [14] real estate information, [15] job records[16] and markets, [17] financial information, [18] poems, [19] medical lexicons, [20] weblinks, [21] ticketing event data, [22] advertisements, [23] addresses, [24] and sporting event information.[25] Notably, one European court even held that websites in general, as collections of webpages, are presumptively protected under the Directive so long as there was substantial investment in their content.[26] Moreover, regarding written materials, protected databases include collections of self-help groups, [27] public exhibition catalogues,[28] collective bargaining agreements, [29] hit music titles, [30] and magazines.[31] Finally, in the case of electronic materials, protection may extend to collections of email addresses, [32] demographic information, [33] and map derivations.[34]

Consequently, it is more useful to inquire about what types of collections don’t qualify for protection under the Directive. The answer, apparently, is: few, if any. In IMS Health v. Pharma Internet, the Frankfurt Court of Appeal recently denied database protection to collections of sales figures from the pharmaceutical industry that were arranged in geographical order, or brick structure, since brick structure—as a bare numerical classification system—did not systematically arrange the collections.[35] In addition, the Munich District Court denied protection for MIDI files generally, since the data making up a MIDI file are not individually accessible.[36] Likewise, the Amsterdam District Court denied protection to printed newspaper and magazine articles, insofar as they cannot be accessed individually.[37]

Thus, the lone touchstone going forward is that database rights cannot inhere in collections utterly incapable of individual access, or whose arrangement was rendered on the basis of bare numerical classification. That said, if(as one court recently held(the term ‘systematic arrangement’ does not imply that information be ordered in any physical sense, but merely that it appear systematically arranged to users, then the sky is quite possibly the limit in terms of cognizable collections.[38]

B. The requisite investment under the Directive is minimal.

Generally, courts interpreting the investment threshold have held that the necessary investment is minimal, involving simply “the deployment of financial resources and/or the expending of time, effort and energy.”[39] One court even held that an investment was substantial if it had “substantial weight,” referring to the English adage, “What is worth copying is worth protecting.”[40] Indeed, if mere collections of hyperlinks on websites qualify for protection under the Directive, then nearly any expenditure of time, effort or energy is sufficient.[41] Furthermore, because investment is only necessary “in either the obtaining, verification or presentation of the contents,” a database is covered under the Directive, for instance, even where expenditure occurred solely in a database’s maintenance.[42]

Interestingly, a German court first queried the public interest before determining whether a substantial investment had been made in a database’s content.[43] There, the database in question was of demographic information(content that was freely accessible in the yellow pages and the trade register. The court concluded that, even if the investment were substantial, the public interest in freely accessible information overrided it.

Evidently, no other European courts have explicitly factored the public interest, or the free accessibility of content for that matter, into their substantial investment calculus. Thus, whether consideration of the public interest was a one-time aberration or a sign of things to come is ambiguous.

C. The requisite threshold for infringement under the Directive—though relatively indefinite—is arguably minimal.

European courts diverge significantly in their approach to infringement analysis. Generally, however, courts evaluate three aspects of the part extracted or re-utilized in framing an infringement calculus: its proportion to the whole, its quality, and its economic value.

At the current moment, there is no clear consensus on the precise level of proportion, quality, or value sufficient to trigger liability. For instance, regarding proportion, the Paris Court of Appeal found liability where only 12% of the total content of a database was extracted.[44] In contrast, the Versailles Court of Appeal found no liability where a defendant extracted ten communications and two annual reports from a plaintiff’s database.[45] Furthermore, regarding quality, the Munchen Court of Appeal held(in a dispute over a chart of hit music titles(that the mere appropriation of data, and not of any outward features (such as a hit’s ranking), did not infringe a database right.[46] Likewise, the Versailles Court of Appeal held that the mere extraction of data, in the absence of other circumstances such as the strategic or up-to-date character of the data, did not trigger liability.[47] Other courts, in contrast, have held appropriation alone sufficient for liability.[48]

Confounding the issue are at least two additional factors. First, courts frequently consider the means of infringement. Means of infringement include the well-known traditional routes, but also non-traditional means enabled in particular by the internet, such as framing, linking, and searching. In European courts, it is well established that online framing of a maker’s database constitutes infringement under the Directive.[49] It is less well established that linking to a maker’s database constitutes infringement, except when advertisements have been systematically bypassed.[50] And the law regarding search engines, which in effect employ linking, is altogether perplexing.[51] Suffice it to say that the means of infringement can(and sometimes is(determinative.

Second, some courts have crafted an exemption for so-called normal use. For instance, the Cologne Higher Regional Court concluded that reproduction of the headlines of a newspaper publisher’s database constituted normal use where the entire newspaper had voluntarily been placed on the Internet.[52] Similarly, the Berlin District Court found normal use in the routine searching and storing of data by search engines.[53] Nevertheless, as in the case of the public interest in the investment analysis, it remains to be seen whether this form of exemption will take root outside of Germany.

Of course, lingering doubts also prevail over what the Council meant precisely by extractions of insubstantial parts that “conflict with a normal exploitation of that database or … unreasonably prejudice the legitimate interests of the maker of the database.”[54] To date, the case law is insufficient to resolve the meaning of these clauses.

D. The term of protection is likely greater than 15 years, and potentially infinite.

Although the Directive provides for a term of protection of 15 years from the date of a database’s completion or first availability to the public, whichever is later[55]—including for databases already in existence at the time of ratification, no matter if they were previously in the public domain[56]—the term of protection is potentially much longer. The reason for this is that, “any substantial change, evaluated qualitatively or quantitatively, to the contents of [a] database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in [a] database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own terms of protection.”[57]

To date, European courts have yet to explicitly consider the expiration of database rights. However, courts have interpreted the latter clause in the context of protection for so-called dynamic databases. Most notably, the U.K. High Court of Justice concluded, in dicta, that databases frequently or constantly updated are protected under the Directive.[58] On that basis, many, if not most, databases stand to receive perpetual protection, since databases are generally never ‘completed’ in any formal sense, but are updated on a rolling basis.[59]

E. The Directive has engendered significant litigation.

Scores of civil suits have been brought under the Directive.[60] However, it is uncertain whether the number of suits differs markedly from what might have been brought had the Directive never passed; arguably, many plaintiffs could have pursued(or did pursue(relief on an alternative basis (e.g., copyright infringement or unfair trade practices).

Nevertheless, until there is uniform interpretation of the Directive—both within and across Member States—there is likely to be significant litigation on account of confusion by both makers and users. Furthermore, even after uniformity, it will be difficult, if not impossible, for users to shape their behavior in accordance with the Directive: users simply cannot know whether there was substantial investment in a database. In that sense, the Directive’s system of ill-defined but very extensive restrictions will continue to favor excess litigation, even in the long-run.

F. There are no significant safe harbors from liability.

Although makers have no rights to prevent acts exempted by Member States,[61] to date, few exemptions have been recognized, even if they are allowable under the statute.[62] For instance, no Member State has passed an exemption for research privileges. In addition, no Member State has passed an exemption for journalistic freedoms. Evidently, too, no court as yet has crafted its own exemption for such—arguably fair—uses.

G. The Directive has proven a windfall to sole source database makers.

Early reports indicated that the vast percentage of litigation has been brought by a tiny minority of companies, companies that in common manufacture(but do not collect(data.[63] At the very least, therefore, the Directive has contributed to an increase in the number of “synthetic data” plaintiffs. At worst, the Directive has accorded sole source makers a legal windfall, since synthetic data, by definition, cannot be produced by another and makers have little incentive to license at a reasonable cost.

A few courts have attempted to curb this threat by heightening the investment requirement. In short, where the obtaining, verification, and presentation of a database’s contents were a mere byproduct or “spin-off” of a maker’s other business endeavors, some courts have ruled that the database cannot reflect substantial investment.[64] For instance, the Rotterdam President District Court held that an online collection of article headlines by a newspaper publisher was a byproduct of newspaper publishing, and hence did not reflect substantial investment.[65] Likewise, The Hague Court of Appeal ruled that investment in an online collection of information about real estate goods was inadequate where the plaintiffs(real estate brokers(had previously set up the database for use in an internal network.[66]

In response to this judge-made rule, however, the European Court of Justice recently heard two cases on appeal. In British Horseracing Board Ltd. (“BHB”) v. William Hill Organization Ltd., the court considered protection of a database produced by BHB(a company that manages the horse racing industry in the United Kingdom(containing information on, inter alia, the records of jockeys and horses, handicapping, and the entrants in individual races.[67] Similarly, in Fixtures Marketing Ltd. v. Svenska Spel AB, the court contemplated the Directive’s application to a database produced by Fixtures Marketing(a company hired by the owners of professional football in England and Scotland(containing lists of seasonal football matches.[68] The court in both cases rejected a categorical spin-off rule, instead holding that database rights are available to even sole source makers so long as “the obtaining of those materials, their verification or their presentation, … required substantial investment in quantitative or qualitative terms, which was independent of the resources used to create those materials.”[69]

Nonetheless, the court in Fixtures Marketing ruled that, because “[f]inding and collecting the data which make up a football fixture list do not require any particular effort on the part of the professional leagues,” nor “any particular effort into monitoring the accuracy of the data,” and since “presentation of a football fixture list, too, is closely linked to the creation as such of the data which make up the list,” there was no substantial investment by Fixtures Marketing in its database.[70] Similarly, in BHB, the court found the investment insubstantial because “the resources used to draw up a list of horses in a race and to carry out checks in that connection do not represent investment in the obtaining and verification of the [database’s] contents.”[71]

Hence, although the requirement of substantial investment is arguably de minimus in most circumstances, it apparently has some teeth in the context of spin-off or sole source databases. Whether this will more effectively balance the rights of users against the rights of sole-source information providers is unclear.

Interestingly, the original proposal of the Directive provided for a system of compulsory licenses, which might have countered this problem.[72] To wit, if certain information could only be obtained from a single source, the maker would be obliged to grant licenses under fair and non-discriminatory conditions. By the final draft of the Directive, however, the compulsory licensing scheme was dropped.

H. The Directive has raised significant barriers to—and may have stifled—scientific and technological innovation.

There has not been a single European judgment on infringement of a scientific or technical database.[73] Although the reason for this phenomenon is unclear, on one level it suggests that the Directive has not had the systemic effects on scientific and technical progress(or egress, as it were(that skeptics predicted, at least in the courtroom. However, it is also possible that scientists and engineers have simply ignored the Directive to date, or altogether escaped enforcement.[74]

Of course, the issue is more insidious than that, since data aggregation is becoming increasingly essential for effective research, and the Directive clearly raises serious barriers to aggregation.[75] Furthermore, scientists increasingly require not only access to data, but also the downstream ability to re-utilize and re-publish it.[76] Currently, no Member State has enacted a general research exemption that allows for such access. In fact, the optional (and as yet unratified) exemption for scientific research does not even accord scientists the basic right to re-utilize data.

In a formal study commissioned by the European Commission, moreover, only one third of respondents—from private and public database right holders, private and public database users, as well as various organizations and individuals—found the optional exclusion for scientific research satisfactory.[77] Specific criticisms were that the Directive accorded “too great protection to those who complete the database at expense of those (in the research community) who collect the data at expensive experimentation,”[78] and that the Directive produced significant chilling effects on publication and peer review, two hallmarks of an effective scientific community.[79] As one pundit succinctly put it, “scientific research cannot wait 15 years to freely use the data.”[80]

I. The Directive has not enhanced—and may have opposed—the creation and valuation of databases.

In order to determine whether the Directive has curbed database creation and valuation, in-depth studies are required on the development and valuation of European data collections. Although an early report suggested the converse—i.e., that the Directive actually facilitated database creation and valuation—it now appears that there was only a modest, one-time boost in database production after adoption of the Directive.[81] Subsequently, things returned to previous levels.[82]

Nevertheless, it stands to reason that decreases in public access to information, and in the downstream ability to re-use it—a logical consequence of the Directive and a serious concern of many Europeans—may in time lead to a decline in the creation of new databases.[83] Simply put, users may lack the requisite inputs—if not in data then in inspiration—to manufacture new collections.

III. Lessons.

Was a database right necessary in the first place? The evidence strongly suggests not. One of the primary rationales behind the Directive was to safeguard current investments in databases, as well as ensure investment streams for the future. Apparently, however, the main users of the right are people who would have developed a database anyway, particularly in light of the Directive’s retroactive application, and the jump in database production was a minor, one-time affair. Furthermore, there is simply no evidence to suggest that the lack of a Directive over the past nine years would have quelled investment. Arguably, many collections of data were already protected under the laws of Member States prior to the Directive, so investment might have continued regardless.[84] And although in a recent survey the majority of makers and users believed that the Directive did encourage the making of new investments in data collections, a solid minority—including, most notably, the U.K. Patent Office—concluded that it was too difficult to say if there had actually been any change in investment.[85]

Consequently, whether the crisis averted by the Directive was real or imagined is a matter of debate, though surely an important one. However, the fact that the database industry in the U.S., which arguably has even less protection for databases than the E.U. prior to the Directive, is an unqualified success, and certainly doesn’t lack for investment—notwithstanding cries of industry to the contrary, who continue to allege a crisis of their own—strongly suggests the latter.

In addition, although the U.S. is not encumbered with the same issues of harmonization as the E.U., it is evident from the cases that a poorly constructed statute will do little to render uniform treatment under the law. After nearly a decade, even basic rules of the Directive remain ambiguous: What is the requisite investment for protection? What level of re-utilization or extraction is sufficient for liability? When does the term of protection end? Unless and until the European Court of Justice resolves these issues, the E.U. stands to retain the same disparate legal regimes that it had prior to the Directive, and has failed to achieve one of its primary objectives.

There is also no evidence to suggest that the Directive has increased competition. To the contrary, sole source and spin-off database providers have been granted unchecked monopolies on information, information for which no alternative source is possible. Whether competition has increased for other types of collections, in contrast, is a matter for future study.

Regardless, if the U.S. opts to forge ahead with legislation, there are likely to be substantial costs. The costs are likely to be substantial because the potential application of a sui generis database right is terrific: it extends—perhaps perpetually—to makers of collections of nearly any form and nearly any investment, and may be enforced against even casual downstream users.[86] Indeed, the scope of the Directive arguably supercedes that of any other intellectual property statute in history.

Accordingly, it is imperative that the rights of database makers and users are balanced equitably. [87] On account of the lack of exemptions, no matter how basic, of potential windfalls to sole-source and spin-off data providers, and of no formal—let alone genuine—consideration for the public domain, the Directive cannot even claim a colorable argument in favor of such equity. The U.S. must therefore carefully craft its own database right—assuming it is still intent on passing such legislation—lest it, too, offer inadequate tradeoffs to users. Otherwise, its legislation will stand alongside the European Database Directive as a serious affront to the public.

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[1] Directive 96/9/EC (“Directive”) of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, Official Journal No. L 77 of 27 March 1996, Article I § 1 (1996).

[2] Id., at § 2.

[3] Id., at Article 7 § 1.

[4] Id.; Recital 41. A right does not inhere, however, in non-nationals of a Member State or non-Community Citizens, or in companies and firms that were either not formed in accordance with the law of a Member State or do not have a registered office, central administration, or principal place of business within the Community. Directive, at Article 11.

[5] Id., at Article 7 § 1.

[6] Id., at Article 7 § 5.

[7] Id., at Article 9.

[8] Id., at Article 10, § 1-2.

[9] Available generally at .

[10] baukompass.at, Austrian Supreme Court (Oberste Gerichtshof) (Nov. 27, 2001); KPN v. XSO, The Hague President District Court (Arrondissementsrechtbank) (Jan. 14, 2000); France Telecom v. MA Editions, Paris Commercial Court (Tribunal de commerce) (June 18, 1999); Tele-Info-CD, German Supreme Court (Bundesgerichtshof) (May 6, 1999).

[11] Munich District Court (Landgericht) (Aug. 8, 2002); Editorial Aranzadi, Elda (Alicante) District Court (Tribunal de primera instancia) (July 2, 1999).

[12] ADV-Firmenbuch, Austrian Supreme Court (Oberste Gerichtshof) (Apr. 9, 2002).

[13] Spot v. Canal Numedia, Brussels District Court (Tribunal de premiere instance) (Jan. 18, 2002).

[14] , Copenhagen District Court (Byret) (July 16, 2002); Munich District Court (Landgericht) (Mar. 1, 2002); Algemeen Dagblad et al. v. Eureka, Rotterdam President District Court (arrondissementsrechtbank) (Aug. 22, 2000)

[15] Les Editions Neressis v. France Telecom Multimedia services, Paris District Court (Tribunal de Grande Instance) (Nov. 14, 2001); NVM v. De Telegraaf (‘El Cheapo’), The Hague Court of Appeal (Gerechtshof) (Dec. 21, 2000).

[16] Cadremploi v. Keljob, Paris District (Tribunal de Grande Instance) (Sep. 5, 2001).

[17] Stepstone, Cologne District Court (Landgericht) (Feb. 28, 2001); Wegener et al. v. Hunter Select, Leeuwarden Court of Appeal (Gerechtshof) (Nov. 27, 2002).

[18] PRLine v. Newsinvest, Nanterre Commercial Court (Tribunal de commerce) (May 16, 2000).

[19] derpoet.de, Cologne District Court (Landgericht) (May 2, 2001).

[20] Medizinisches Lexicon II, Hamburg Higher Regional Court (Oberlandesgericht) (Feb. 22, 2001).

[21] Rostock Lower Court (Amtsgericht) (Feb. 20, 2001); Kidnet/Babynet, Cologne District Court (Landgericht) (Aug. 25, 1999).

[22] Berlin Court of Appeal (Kammergericht) (June 9, 2000).

[23] Suddeutsche Zeitung, Cologne District Court (Landgericht) (Dec. 2, 1998); Berlin Online, Berlin District Court (Landgericht) (Oct. 8, 1998).

[24] Stichting Vrije Recreatie v. Vakantieboerderij.nl, Zutphen President District Court (arrondissementsrechtbank) (Sep. 2, 2003).

[25] British Horseracing Board v. William Hill Org. Ltd., British High Court of Justice (July 31, 2001).

[26] baumarkt.de, Dusseldorf Higher Regional Court (Oberlandesgericht) (June 29, 1999).

[27] N.V. Syllepsis v. N.V. Wolters Kluwers Belgium, Court of Brussels (July 28, 2000).

[28] Ste. Tigest Sarl v. Ste. Reed Exposition France et al., Paris Court of Appeal (Cour d’appel) (Sep. 12, 2001); Miller Freeman v. Neptune Verlag, Paris District Court (Tribunal de Grande Instance) (Jan. 31, 2001).

[29] Dictionnaire Permanent des Conventions Collectives, Lyon District Court (Tribunal de Grande Instance) (Dec. 28, 1998).

[30] 29 U 4008/02, Munchen Court of Appeal (Oberlandesgericht) (Oct. 10, 2002).

[31] Dresden Higher Regional Court (Oberlandesgericht) (July 18, 2000); But see Publishers v. Euroclip et al., Amsterdam District Court (Arrondissementsrechtbank) (Sep. 4, 2002).

[32] La societe Sonacotra v. le syndicat Sud Sonacotra, Paris District Court (Tribunal de Grande Instance) (July 22, 2003).

[33] Branchenbuch, Dusseldorf District Court (Landgericht) (Feb. 7, 2001).

[34] Iceland Supreme Court (Hoyesterett) (Sep. 19, 2002).

[35] Frankfurt Court of Appeal (Oberlandesgericht) (Sep. 17, 2002).

[36] Munich District Court (Landgericht) (Mar. 30, 2000).

[37] Publishers, supra note 31.

[38] Berlin Court of Appeal, supra note 22.

[39] Directive, Recital 40,

[40] Rostock Lower Court, supra note 21.

[41] See, e.g., Kidnet/Babynet, supra note 21.

[42] Directive, Article 7 § 1 (emphasis added).

[43] Branchenbuch, supra note 33.

[44] Cadremploi, supra note 16.

[45] SARL News Invest v. SA PR Line, Versailles Court of Appeal (Cour d’appel) (Apr. 11, 2002).

[46] Munchen Court of Appeal, supra note 30.

[47] SARL News Invest., supra note 45.

[48] See, e.g., Medizinisches Lexicon II, supra note 20; KPN, supra note 10.

[49] See, e.g., Medizinisches Lexicon II, supra note 20 (finding that framing of a website containing a medical lexicon amounted to unlawful reproduction); , supra note 14.

[50] See, e.g., Algemeen Dagblad et al., supra note 14 (finding that systematic linking to a website did not amount to infringement where the maker could not definitively show that it had lost advertising revenue);

[51] See, e.g., MainPost, supra note 14 (holding that the searching in and storing of data found in databases by a normal search engine did not constitute infringement); KPN, supra note 10 (holding that the operator of a search engine infringed a maker’s database right by providing extracted data to users without referring users to the maker’s website); Suddeutsche Zeitung, supra note 23 (holding that systematic bypass of advertisements on a maker’s website by a search engine constitutes infringement).

[52] Cologne Higher Regional Court (Oberlandesgericht) (Oct. 27, 2000).

[53] Berlin District Court (Landgericht) (Jan. 30, 2001).

[54] Directive, at Article 7 § 1, 5

[55] Id., at Article 10 § 1-2.

[56] Id., at Article 14 § 1.

[57] Id., at § 3.

[58] British Horseracing Board v. William Hill Organization Ltd., High Court of Justice (Feb. 9, 2001)

[59] NautaDutilh Report: The Implementation and Application of Directive 96/9/EC on the Legal Protection of Databases (2001), p. 494.

[60] See, generally, .

[61] Id., at Article 9.

[62] See, generally, P. Bernt Hugenholtz, The New Database Right: Early Case Law from Europe, Fordham Univ. School of Law Ninth Annual Conference on Int’l. I.P. Law & Policy, § 2.

[63] Stephen M. Maurer et al., Europe’s Database Experiment, 294 Science 789-90 (Oct. 26, 2001).

[64] See, e.g., Algemeen Dagblad et al, supra note 14.

[65] Id.

[66] NVM, supra note 15. But see Wegener et al., supra note 17 (holding that the spin-off doctrine did not apply to a newspaper publisher’s jobs-section database where the publisher demonstrated that they had made a substantial investment in the presentation of an orderly print edition).

[67] European Court of Justice (Nov. 9, 2004).

[68] European Court of Justice (Nov. 9, 2004).

[69] Id., at ¶ 29; BHB, supra note 67, at ¶ 35.

[70] Fixtures Marketing Ltd., supra note 68, at ¶ 33-36.

[71] BHB, supra note 67, at ¶ 41.

[72] See P. Bernt Hugenholtz, Program Schedules, Event Data and Telephone Subscriber Listings under the Database Directive. Paper presented at Fordham University School of Law Eleventh Annual Conference on International IP Law & Policy (New York, April 2003).

[73] In the lone technical case on point, the British High Court concluded, in dicta, that plaintiffs(designers and manufacturers of coin receiving and changing mechanisms(might have a cognizable database right in so-called “Coin Set Data.” Mars UK Ltd. v. Teknowledge Ltd., U.K. High Court, Chancery Division (June 11, 1999).

[74] NautaDutilh Report, supra note 59, p. 486.

[75] Maurer et al., supra note 63, at 790.

[76] Id.

[77] NautaDutilh Report, supra note 59, at 551.

[78] Id., at 464.

[79] Id., at 487.

[80] Id., at 494.

[81] Maurer et al., supra note 63, at 790.

[82] Id.

[83] See, generally, NautaDutilh Report, supra note 59.

[84] NautaDutilh Report, supra note 59, at 464.

[85] Id., at 533.

[86] One might define “casual use” the mere bypass of advertisements on a website, or the extraction of a small percentage of a database.

[87] The legal regimes for copyright and patent protection carefully reflect a balance between rights holders and the public, hence their enduring nature.

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