Apis-Hristovich EOOD v Lakorda AD.
Date: 2009-03-05
28. In this respect, it must be recalled that, according to the settled case-law of the Court, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59; Case C‑380/05 Centro Europa 7  [2008] ECR I‑349, paragraph 52; and Case C‑213/07 Michaniki  [2008] ECR I‑0000, paragraph 32).
29. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑326/00 IKA  [2003] ECR I‑1703, paragraph 27, and Michaniki  [2008] ECR I‑0000, paragraph 33).
30. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39, and Michaniki  [2008] ECR I‑0000, paragraph 34).
32. It must be added that, in the procedure referred to in Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. However, in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide it with all the guidance that it deems necessary (Case C‑49/07 MOTOE  [2008] ECR I‑0000, paragraph 30 and the case-law cited therein).
39. Since the concept of extraction is used in various provisions of Article 7 of Directive 96/9, the answers to the questions being considered must be placed in the general context of that article (see, to that effect, Case C‑304/07 Directmedia Publishing  [2008] ECR I‑0000, paragraph 28).
40. The Court has already held that, having regard to the terms employed in Article 7(2)(a) of Directive 96/9 to define the concept of extraction and to the objective of the sui generis right instituted by the Community legislature (see, in that regard, Case C‑203/02 The British Horseracing Board and Others  [2004] ECR I‑10415, paragraphs 45, 46 and 51, and Directmedia Publishing , paragraphs 31 to 33), that concept must, in the context of Article 7, be given a broad interpretation as referring to any unauthorised act of appropriation of the whole or a part of the contents of a database, the nature and form of the process used being immaterial (see, to that effect, The British Horseracing Board and Others , paragraphs 51 and 67, and Directmedia Publishing , paragraphs 34, 35, 37 and 38).
41. 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 (see Directmedia Publishing , paragraph 36).
46. Moreover, the objective pursued by the act of transfer is immaterial for the purpose of assessing whether there has been an extraction. 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, or that the act is part of an activity, whether commercial or not, other than the creation of a database (see, to that effect, Directmedia Publishing , cited above, paragraphs 46 and 47, and the case-law cited therein).
47. As is confirmed by the 38th recital in Directive 96/9, it is also immaterial, for the purposes of interpreting the concept of extraction, that the transfer of the contents of a protected database to another medium result in an arrangement or an organisation of the material concerned which is different from that in the original database (see, to that effect, Directmedia Publishing , paragraph 39).
49. It must also be stated in that regard that, if it is established – and that is for the national court to determine – that the contents or a substantial part of the contents of a database protected by the sui generis right was transferred, without the permission of its maker, to a medium owned by another person so as to be made available to the public subsequently by that person, for example in the form of another, possibly modified, database, that fact would show, in addition to the existence of extraction, the existence of re-utilisation within the meaning of Article 7 of Directive 96/9, re-utilisation being the making available to the public of all or a substantial part of the contents of a protected database (see, to that effect, The British Horseracing Board and Others , cited above, paragraph 61 and 67).
59. With regard to the national court’s second question, it must be recalled that, according to the Court’s case-law, the concept of a substantial part, evaluated quantitatively, of the contents of a protected database refers to the volume of materials extracted from the database and/or re-utilised, and must be assessed in relation to the volume of the contents of the whole of that database. If a user extracts and/or re-utilises a quantitatively significant part of the contents of a database whose creation required the deployment of substantial resources, the investment in the extracted or re-utilised part is, proportionately, equally substantial ( The British Horseracing Board and Others , cited above, paragraph 70).
62. It follows that in a situation such as that referred to by the national court in its second question, where a body of materials consists of several separate modules, it is necessary, in order to assess whether an extraction and/or re-utilisation allegedly made from one of the modules covered a substantial part, evaluated quantitatively, of the contents of a database, to determine first whether that module itself constitutes a database within the meaning of Directive 96/9 (see, in that regard, Case C-444/02 Fixtures Marketing  [2004] ECR I-10549, paragraphs 19 to 32) and, in addition, fulfils the criteria laid down in Article 7(1) of the Directive for protection by the sui generis right.
66. With regard to the national court’s third question, it must be pointed out that, according to the Court’s case-law, the concept of a substantial part, evaluated qualitatively, of the contents of a protected database refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. A quantitatively negligible part of the contents of a database may in fact represent, in terms of obtaining, verification or presentation, significant human, technical or financial investment ( The British Horseracing Board and Others , cited above, paragraph 71).
67. In the light of the 46th recital in Directive 96/9, according to which the existence of the sui generis right does not give rise to the creation of a new right in the works, data or materials themselves, it has been held moreover that the intrinsic value of the materials affected by the act of extraction and/or re-utilisation does not constitute a relevant criterion for assessment in that regard ( The British Horseracing Board and Others , paragraphs 72 and 78).
68. Bearing in mind what was stated in paragraph 66 of the present judgment, the fact that the materials allegedly extracted and/or re-utilised from a database protected by the sui generis right were obtained by its maker from sources not accessible to the public may, according to the amount of human, technical and/or financial resources deployed in collecting the materials at issue from those sources, affect the assessment of whether there has been a substantial investment in the ‘obtaining’ of the material within the meaning of Article 7(1) of Directive 96/9 (see, to that effect, Case 46/02 Fixtures Marketing  [2004] ECR I‑10365, paragraphs 34 and 38) and, consequently, influence the classification of the material as a substantial part, evaluated qualitatively, of the contents of the database concerned.
69. Finally, with regard to the presence in the database concerned of official materials accessible to the public, referred to in the national court’s sixth question, it must be pointed out that it is apparent both from the general nature of the terms used in Article 1(2) of Directive 96/9 to define the concept of a database within the meaning of the Directive and from the objective of the protection afforded by the sui generis right that the Community legislature intended to give that concept a wide scope, unencumbered by considerations relating, in particular, to the substantive content of the body of materials in question (see, to that effect, Case 444/02 Fixtures Marketing , cited above, paragraphs 19 to 21).
72. Consequently, as Apis, the Bulgarian Government and the Commission argue, the fact that all or part of the materials brought together in a collection of data are official and publicly accessible does not relieve the national court of an obligation to verify, in the light of all relevant facts, whether that collection constitutes a database capable of being protected by the sui generis right on the ground that a substantial investment, in quantitative or qualitative terms, was necessary to obtain, verify and/or present its overall contents (see, to that effect, Case 46/02 Fixtures Marketing , cited above, paragraphs 32 to 38).