Opinion of the Advocate General — ECLI:EU:C:2011:848
Date: 2011-12-15
Language of the case: English
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 1. Approximation of laws — Legal protection of databases — Directive 96/9 — Copyright and sui generis right (European Parliament and Council Directive 96/9, Arts 3(1) and 7(1)) 2. Approximation of laws — Legal protection of databases — Directive 96/9 — Protection by copyright — Conditions (European Parliament and Council Directive 96/9, Art. 3(1)) 3. Approximation of laws — Legal protection of databases — Directive 96/9 — Protection by copyright (European Parliament and Council Directive 96/9, Art. 3(1) and 14(2)) 1. It is apparent both from a comparison of the terms of Article 3(1) and Article 7(1) of Directive 96/9 on the legal protection of databases, and from other provisions or recitals of Directive 96/9, in particular Article 7(4) and recital 39 to that directive, that the copyright and the ‘sui generis’ right amount to two independent rights whose object and conditions of application are different. Consequently, the fact that a ‘database’ within the meaning of Article 1(2) of Directive 96/9 does not satisfy the conditions of eligibility for protection by the ‘sui generis’ right under Article 7 of Directive 96/9 does not automatically mean that that database is not eligible for copyright protection under Article 3 of that directive either. (see paras 27, 28) 2. Article 3(1) of Directive 96/9 must be interpreted as meaning that a ‘database’ within the meaning of Article 1(2) of that directive is protected by the copyright provided for by that directive provided that the selection or arrangement of the data it contains amounts to an original expression of the creative freedom of its author, which is a matter for the national court to determine. As a consequence: – the intellectual effort and skill in creating the data are not relevant in order to assess the eligibility of that database for protection by that right; – it is irrelevant, for that purpose, whether or not the selection or arrangement of the data involves a significant addition to the data, and – the significant labour and skill required for setting up that database cannot, as such, justify such protection if they do not express any originality in the selection or arrangement of the data contained in that database. Firstly, it is apparent from reading Article 3(2) in conjunction with recital 15 of Directive 96/9 that the copyright protection provided for by that directive concerns the ‘structure’ of the database, and not its ‘contents’ nor, therefore, the elements constituting its contents. The concepts of ‘selection’ and of ‘arrangement’ within the meaning of Article 3(1) of the directive refer respectively to the selection and the arrangement of data, through which the author of the database gives the database its structure. By contrast, those concepts do not extend to the creation of the data contained in that database. Secondly, as is apparent from recital 16 of Directive 96/9, the notion of the author’s own intellectual creation refers to the criterion of originality. As regards the setting up of a database, that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices and thus stamps his ‘personal touch’. By contrast, that criterion is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints leaving no room for creative freedom. Accordingly, no other criteria than that of originality is to be applied to determine the eligibility of a database for the copyright protection provided for by the directive. (see paras 30, 32, 37-40, 45, 46, operative part 1) 3. Directive 96/9 on the legal protection of databases must be interpreted as meaning that, subject to the transitional provision contained in Article 14(2) of that directive, it precludes national legislation which grants databases, as defined in Article 1(2) of the directive, copyright protection on conditions different from those set out in Article 3(1) of the directive. As is apparent from recital 60 of Directive 96/9, Article 3 of that directive carries out a ‘harmonisation of the criteria for determining whether a database is to be protected by copyright’. (see paras 49, 52, operative part 2)