Topographic maps capable of data protection
This article first appeared in Intellectual Property magazine (www.intellectualpropertymagazine.com) and is republished here with the kind permission of the editor.
In a case that potentially has ‘huge implications for the mapping industry’, the Court of Justice of the European Union issued its long awaited verdict in Freistaat Bayern v Verlag Esterbauer GmbH.
Handed down last month, the Second Chamber said that modern topographic maps may deserve protection under EU Database Directive 96/9/EC and its scope of rights within its Article 1(2) provision.
On request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany,) the Luxembourg-based court examined whether geographical data extracted from a topographic map, in order for a third party to produce and market another map, would retain sufficient informative value held to be ‘independent materials’ of a ‘database’ provision of the directive.
Specifically, the directive defines a database as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.”
The phrase has mainly been interpreted in the context of sporting fixtures, and the question of whether topographic maps constituted a database under EU law had not been considered.
Passed down 29 October, the 30-paragraphed verdict stated that the term “database” must be interpreted widely, as collections of works and/or other data, in any form, without technical or material restrictions, therefore applying also to analogue databases.
“The directive… must be interpreted as meaning that geographical information extracted from a topographic map by a third party so that that information may be used to produce and market another map retains, following its extraction, sufficient informative value to be classified as ‘independent materials’ of a ‘database’ within the meaning of that provision,” the court held.
Of worthy note, the chamber urged the “functional” nature of database protection and its aim to foster investment in data processing systems.
“It must be borne in mind in that regard that the court has held that it is in keeping with the objective pursued by the EU legislature to give the term ‘database’ as defined in Directive 96/9 a wide scope, unencumbered by considerations of a formal, technical or material nature,” it stated.
“The legal protection introduced thereby is aimed at stimulating investment in data storage and processing systems in order to 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,” the CJEU added.
Nick Rose, head of Fieldfisher’s IP and technology litigation group, which has advised Britain's mapping agency, Ordnance Survey, in connection with the UK government's submissions to the CJEU case, said the judgment is “very significant”.
“Had the CJEU found that topographic maps were not covered in the definition of a database under the EU Database Directive than the case could have had unintended consequences for the ways in which digital maps and data are produced, used and commercially exploited,” he stated.
He concluded, “Thankfully, though, this decision shows an understanding of how modern maps are produced, as well as the autonomous informative value of the materials making up topographic maps.”
The dispute concerned the use by Verlag Esterbauer, an Austrian travel books publisher, of certain topographic maps published by the Land of Bavaria.
In particular, Verlag Esterbauer scanned the maps and extracted the underlying geographic data with a graphics programme to produce and market its own maps dedicated to walkers and cyclists.
Freistaat Bayern (The State of Bavaria), which publishes topographic maps covering the entire federal state, successfully sought an injunction from Verlag, believing that the company had made unlawful use of its maps and appropriated the underlying data in order to produce the material for its own maps.
The litigation escalated through Germany's courts and was eventually broadened to include the claims that Verlag's maps infringed Freistaat Bavaria's rights under Article 1(2) of the EU Database Directive.