Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg.
Date: 2008-10-09
27. Article 7(1) of Directive 96/9 entitles the maker of a database which required substantial investment from a quantitative or qualitative point of view to prevent acts of extraction in respect of all or a substantial part of the contents of that database. Furthermore, Article 7(5) is intended to enable that maker to prevent acts of repeated and systematic extraction in respect of an insubstantial part of the contents of that database, which, by their cumulative effect, would lead to the reconstitution of the database as a whole or, at least, of a substantial part of it, without the authorisation of the maker, and which would therefore seriously prejudice the investment of that maker just as the extractions referred to in Article 7(1) of the directive would (see The British Horseracing Board and Others , paragraphs 86 to 89).
28. Since the concept of extraction is thus used in various provisions of Article 7 of Directive 96/9, it must be interpreted in the general context of that article (see, to that effect, The British Horseracing Board and Others , paragraph 67).
31. Next, it should be pointed out that the use, in Article 7(2)(a) of Directive 96/9, of the expression ‘by any means or in any form’ indicates that the Community legislature sought to give the concept of extraction a wide definition (see The British Horseracing Board and Others , cited above, paragraph 51).
32. As the Albert-Ludwigs-Universität Freiburg, the Italian Government and the Commission have argued, that broad construction of the concept of extraction finds support in the objective pursued by the Community legislature through the establishment of a sui generis  right.
33. That objective is, as is apparent in particular from recitals 7, 38 to 42 and 48 in the preamble to Directive 96/9, to guarantee the person who has taken the initiative and assumed the risk of making a substantial investment in terms of human, technical and/or financial resources in the obtaining, verification or presentation of the contents of a database a return on his investment by protecting him against the unauthorised appropriation of the results of that investment by acts which involve in particular the reconstitution by a user or a competitor of that database or a substantial part of it at a fraction of the cost needed to design it independently (see also, to that effect, Case C‑46/02 Fixtures Marketing  [2004] ECR I‑10365, paragraph 35; The British Horseracing Board and Others , paragraphs 32, 45, 46 and 51; Case C‑338/02 Fixtures Marketing , paragraph 25; and Case C‑444/02 Fixtures Marketing  [2004] ECR I‑10549, paragraph 41).
34. In the light of that objective, the concept of extraction, within the meaning of Article 7 of Directive 96/9, must be understood as referring to any unauthorised act of appropriation of the whole or a part of the contents of a database (see The British Horseracing Board and Others , paragraphs 51 and 67).
36. The decisive criterion in this respect is to be found in the existence of an act of ‘transfer’ of all or part of the contents of the database concerned to another medium, whether of the same nature as the medium of that database or of a different nature. Such a transfer implies that all or part of the contents of a database are to be found in a medium other than that of the original database.
39. It is also immaterial, for the purposes of interpreting the concept of extraction in the context of Directive 96/9, that the transfer of the contents of a protected database may lead to an arrangement of the elements concerned which is different from that in the original database. As is apparent from recital 38 in the preamble to Directive 96/9, an unauthorised act of copying, accompanied by an adaptation of the contents of the database copied, is among the acts against which that directive seeks, through the establishment of the sui generis  right, to protect the maker of such a database.
43. As is apparent from paragraph 27 of this judgment, a reading of Article 7(1) in conjunction with Article 7(5) of Directive 96/9 shows that that concept does not depend on the extent of the transfer of the contents of a protected database since, pursuant to those provisions, the sui generis  right established by that directive offers protection to a maker of a database not only against acts of extraction in respect of all or a substantial part of the contents of his protected database but also, subject to certain conditions, against those of those acts which relate to an insubstantial part of those contents (see, to that effect, The British Horseracing Board and Others , paragraph 50).
46. The objective pursued by the act of transfer is also immaterial for the purposes of assessing whether there has been an ‘extraction’ within the meaning of Article 7 of Directive 96/9.
47. Thus, it is of little importance that the act of transfer in question is for the purpose of creating another database, whether in competition with the original database or not, and whether the same or a different size from the original, nor is it relevant that the act is part of an activity, whether commercial or not, other than the creation of a database (see, to that effect, The British Horseracing Board and Others , paragraphs 47 and 48). Moreover, as is apparent from recital 44 in the preamble to Directive 96/9, the transfer of all or a substantial part of the contents of a protected database to another medium, which would be necessary for the purposes of a simple on‑screen display of those contents, is of itself an act of extraction that the holder of the sui generis  right may make subject to his authorisation.
51. None the less, as regards, first, the right of access to information, it must be pointed out that protection by the sui generis  right concerns only acts of extraction and/or re-utilisation within the meaning of Article 7(2) of Directive 96/9. That protection does not, however, cover consultation of a database ( The British Horseracing Board and Others , paragraph 54).
52. Of course, the maker of a database can reserve exclusive access to his database to himself or reserve access to specific people ( The British Horseracing Board and Others , paragraph 55), or make that access subject to specific conditions, for example of a financial nature.
53. However, where the maker of a database makes the contents of that database accessible to third parties, even if he does so on a paid basis, his sui generis  right does not allow him to prevent such third parties from consulting that database for information purposes (see, to that effect, The British Horseracing Board and Others , paragraph 55). It is only when on-screen display of the contents of that database necessitates the permanent or temporary transfer of all or a substantial part of such contents to another medium that such an act of consultation may be subject to authorisation by the holder of the sui generis  right, as is apparent from recital 44 in the preamble to Directive 96/9.
59. In the case in the main proceedings, it is for the referring court to ascertain, in the light of all the relevant circumstances, for the purposes of establishing whether there has been an infringement by Directmedia of the sui generis  right of the Albert-Ludwigs-Universität Freiburg, whether the operation undertaken by Directmedia on the basis of the list of verse titles drawn up by Mr Knoop amounts to an extraction in respect of a substantial part, evaluated qualitatively or quantitatively, of the contents of that list (see, in that respect, The British Horseracing Board and Others , paragraphs 69 to 72), or to extractions of insubstantial parts which, by their repeated and systematic nature, would have led to reconstituting a substantial part of those contents (see, in that respect, The British Horseracing Board and Others , paragraphs 73, 87 and 89).