Yesterday the CJEU ruled that a modern topographic map falls within the scope of Article 1(2) of the EU Database Directive 96/9/EC (the "Directive") and is therefore capable of being protected as a
Yesterday the CJEU ruled that a modern topographic map falls within the scope of Article 1(2) of the EU Database Directive 96/9/EC (the "Directive") and is therefore capable of being protected as a database under Article 3(1) and (2) that Directive.
According to Article 1(2) of the Directive a database is "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or others means". Until yesterday, this phrase had mainly been interpreted by the CJEU in the context of "sporting fixtures" case law (for example in Fixtures Marketing (C-444/02) ("Fixtures",) and Football Dataco and Others (C-604/10) ("Dataco")). Indeed, in Fixtures (para 29) the CJEU interpreted "a collection of independent works" as one in which separating the works, data or materials from one another would not affect their informative value.
What's the background?
The question "is a topgraphic map a database?" was referred to the CJEU by the German Federal Court of Justice in Freistaat Bayern v Verlag Esterbauer GmbH (Case C-490/14). In this case:
Referred question?
In essence the referred question asked whether Article 1(2) of the Directive has to be interpreted as meaning that geographical data extracted from a topographic map retains, after extraction, sufficient informative value to be held to be "independent materials" of a "database" within the meaning of that provision?
Is a topographic map a database for the purposes of the Directive?
In short, the CJEU answer was yes! (see paragraph 29). Effectively, the CJEU confirmed that:
Take away
Thanks to yesterday's decision, topographic maps are now capable of falling within the definition of a database under Article 1(2) of the Directive.
The decision has to be correct. In the example of the location of a building on a map, there is information on the building's latitude and longitude, its elevation and the type of feature at that point. These elements have informational value and their value is not affected by separating them from the database. They are also not linear like the structure of a novel or music. The CJEU's rejection of the "typical user" is also correct in that modern maps have different users with different purposes (eg locating flooding risks, identifying commercial uses of properties or access points in buildings for emergency services).
We expect to see an increase in cases involving the protection of data in the near future. It is therefore encouraging that the CJEU has taken a direct, sensible and commercial approach in this case. Modern map producers will welcome the decision as it reflects a good understanding of how modern maps and data are produced and, more generally, how digital information is used and commercially exploited.
According to Article 1(2) of the Directive a database is "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or others means". Until yesterday, this phrase had mainly been interpreted by the CJEU in the context of "sporting fixtures" case law (for example in Fixtures Marketing (C-444/02) ("Fixtures",) and Football Dataco and Others (C-604/10) ("Dataco")). Indeed, in Fixtures (para 29) the CJEU interpreted "a collection of independent works" as one in which separating the works, data or materials from one another would not affect their informative value.
What's the background?
The question "is a topgraphic map a database?" was referred to the CJEU by the German Federal Court of Justice in Freistaat Bayern v Verlag Esterbauer GmbH (Case C-490/14). In this case:
- Verlag Esterbauer GmbH ("Verlag"), is an Austrian publisher which publishes (amongst other things) guidebooks, maps and atlases, containing mapped routes for walkers, inline skaters and cyclists.
- Freistaat Bayern, (or the "Land of Bavaria") publishes topographic maps covering the entire Ferderal State of Bavaria.
- The Land of Bavaria successfully sought an injunction from Verlag, believing Verlag made unlawful use of its maps and appropriated the underlying data in order to produce the material for its own maps.
- The dispute escalated through the German courts and on appeal was broadened to include the claim that Verlag's maps infringed the Land of Bavaria's rights under Article 1(2) of the Directive.
- The Federal Court of Justice stayed the proceedings, on the basis that it had doubts as to whether topographic maps come within the definition of "database" within the meaning of Article 1(2) of the Directive, and so requested guidance from the CJEU.
Referred question?
In essence the referred question asked whether Article 1(2) of the Directive has to be interpreted as meaning that geographical data extracted from a topographic map retains, after extraction, sufficient informative value to be held to be "independent materials" of a "database" within the meaning of that provision?
Is a topographic map a database for the purposes of the Directive?
In short, the CJEU answer was yes! (see paragraph 29). Effectively, the CJEU confirmed that:
- the term "database" should be given a wide scope, in line with the objective of the EU legislation;
- the concept of "database" is specifically defined in terms of function;
- the classification in Fixtures and Dataco was correct, notably:
- "classification of a ‘database’ within the meaning of Article 1(2) of the Directive is dependent on the existence of a collection of ‘independent materials’, that is to say, materials which are separable from one another without their informative, literary, artistic, musical or other value being affected.
- a combination of pieces of information can constitute "independent material" within the meaning of Article 1(2) of the Directive. For example, in this case, a combination of geographical coordinate points plus the code used to designate a unique feature (eg a church) or a greater combination such as information about tracks appropriate for cyclists or mountain bikers could be "independent material".
- "the informative value of material from a collection is not affected… if it has autonomous informative value after being extracted from the collection concerned" (para 22).
- when assessing the autonomous value of the materials making up topographic maps, that value must be assessed for each third party interested in the extracted material and not in light of the value held by a typical user.
Take away
Thanks to yesterday's decision, topographic maps are now capable of falling within the definition of a database under Article 1(2) of the Directive.
The decision has to be correct. In the example of the location of a building on a map, there is information on the building's latitude and longitude, its elevation and the type of feature at that point. These elements have informational value and their value is not affected by separating them from the database. They are also not linear like the structure of a novel or music. The CJEU's rejection of the "typical user" is also correct in that modern maps have different users with different purposes (eg locating flooding risks, identifying commercial uses of properties or access points in buildings for emergency services).
We expect to see an increase in cases involving the protection of data in the near future. It is therefore encouraging that the CJEU has taken a direct, sensible and commercial approach in this case. Modern map producers will welcome the decision as it reflects a good understanding of how modern maps and data are produced and, more generally, how digital information is used and commercially exploited.