Innoweb BV v Wegener ICT Media BV and Wegener Mediaventions BV.
Date: 2013-12-19
31. As regards the concept of ‘re-utilisation’ for the purposes of Article 7(2)(b) of Directive 96/9, this is defined as ‘any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by online or other forms of transmission’. However, the reference to the ‘substantial’ nature of the re-utilised part is no part of the definition of the concept of ‘re-utilisation’ as such (see Case C‑203/02 The British Horseracing Board and Others  [2004] ECR I‑10415, paragraph 50).
32. Since the concept of re-utilisation is referred to in paragraphs 1 and 5 of Article 7 of Directive 96/9, it must be interpreted in the general context of that provision (see, to that effect, as regards the concept of ‘extraction’, Case C‑304/07 Directmedia Publishing  [2008] ECR I‑7565, paragraph 28).
33. The use, in Article 7(2)(b) of Directive 96/9, of the phrase ‘any form of making available to the public’ indicates that the Community legislature attributed a broad meaning to ‘re-utilisation’ (see, to that effect, The British Horseracing Board and Others , paragraph 51, and Case C‑173/11 Football Dataco and Others [2012] ECR I‑0000, paragraph 20).
34. That broad construction of the concept of ‘re-utilisation’ is lent support by the objective pursued by the Community legislature through the establishment of a sui generis  right (see, to that effect, as regards the concept of extraction, Directmedia Publishing , paragraph 32).
35. As the Court has already held on the basis of a number of recitals in the preamble to Directive 96/9, including recitals 39, 42 and 48, that objective is to stimulate the establishment of data storage and processing systems which contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity (see, inter alia, The British Horseracing Board and Others , paragraphs 30 and 31; Case C‑46/02 Fixtures Marketing  [2004] ECR I‑10365, paragraph 33; and Case C‑604/10 Football Dataco and Others  [2012] ECR I‑0000, paragraph 34).
36. To that end, the protection offered by the sui generis  right under Directive 96/9 is intended to ensure that 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 setting up and operation of a database receives a return on his investment by protecting him against the unauthorised appropriation of the results of that investment (see The British Horseracing Board and Others , paragraphs 32 and 46; Fixtures Marketing , paragraph 35; and Directmedia Publishing , paragraph 33).
37. In the light of that purpose, the concept of ‘re-utilisation’ as used in Article 7 of Directive 96/9 must be construed as referring to any act of making available to the public, without the consent of the database maker, the results of his investment, thus depriving him of revenue which should have enabled him to redeem the cost of the investment (see The British Horseracing Board and Others , paragraph 51). ‘Re-utilisation’ accordingly refers to any unauthorised act of distribution to the public of the contents of a protected database or a substantial part of such contents (see The British Horseracing Board and Others , paragraph 67; Case C‑545/07 Apis-Hristovich  [2009] ECR I‑1627, paragraph 49; and Football Dataco and Others , paragraph 20). The nature and form of the process used are of no relevance in this respect ( Football Dataco and Others , paragraph 20).
46. Of course, the protection under Article 7 of Directive 96/9 does not cover consultation of a database (see The British Horseracing Board and Others , paragraph 54, and Directmedia Publishing , paragraph 51). In consequence, if the database maker makes the contents of that database accessible to third parties, even if he does so for a consideration, his sui generis  right does not enable him to prevent such third parties from consulting that database for information purposes (see The British Horseracing Board and Others , paragraph 55, and Directmedia Publishing , paragraph 53).