Topographic Maps Qualify as Databases
This article was previously published as the Cover Story of Intellectual Property Magazine Dec 2015/ Jan 2016 edition
The Court of Justice of the European Union (“CJEU”) has ruled that a modern topographic map falls within the scope of Article 1(2) of the EU Database Directive 96/9/EC (the “Directive”).
Article 1(2) of the Directive provides that 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 other means“.
The CJEU has already considered Article 1(2) of the Directive in several previous cases and most notably in the context of “sporting fixtures” (for example in Fixtures Marketing (C-444/02) (“Fixtures“,) and Football Dataco and Others (C-604/10) (“Dataco“)). In Fixtures the CJEU held that classification as a database within the meaning of Article 1(2) of the Directive is dependent, first of all, 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. It is also already settled case-law from both the Fixtures and Dataco cases that not only an individual piece of information, but also a combination of pieces of information can constitute "independent material" within the meaning of Article 1(2).
Background to the Case
Freistaat Bayern, (or the “Land of Bavaria”) publishes topographic maps covering the entire Ferderal State of Bavaria whilst 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.
The Land of Baveria was successful in bringing proceedings before the Landgericht München (the "Munich Regional Court") seeking injunctive relief against Verlag together with damages for making unlawful use of its topographic maps and appropriating the underlying data in order to produce material for its maps.
Verlag appealed the decision of the Munich Regional Court to the Oberlandesgericht München (the "Munich Higher Regional Court") which set aside in part the judgment of the Munich Regional Court but granted leave for an appeal on a point of law regarding the Land of Bavaria's claims based on the protection of databases to the Bundesgerichtshof (the "German Federal Court of Justice").
The German Federal Court of Justice had doubts as to the scope of Article 1(2) of the Directive and whether the topographic maps produced by the Land of Bavaria came within the definition of "database" within the meaning of Article 1(2) and specifically whether data describing the nature of specific points of the Earth's surface constitute "independent materials" within the meaning of Article 1(2).
As a consequence of these doubts the German Federal Court of Justice stayed the proceedings and made a reference seeking a preliminary ruling from the CJEU.
The Question Referred
In a typically convoluted fashion, the question asked of the CJEU by the German Federal Court of Justice was "in relation to the question whether a collection of independent materials exists within the meaning of Article 1(2) of the Directive because the materials can be separated from one another without the value of their informative content being affected, is every conceivable informative value decisive or only the value which is to be determined on the basis of the purpose of the collection and having regard to the resulting typical conduct of users?"
In essence the question referred 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?
More simply the question asks whether a topographic map is a database for the purposes of the Directive?
In short, the answer handed down by the CJEU was yes.
The CJEU held that:-
1. The term “database” should be given a wide scope, in line with the objective of the EU legislation;
2. The concept of “database” is specifically defined in terms of its function;
3. The classification in Fixtures and Dataco was correct, notably:-
The “classification as 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 (for example 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.
4. 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.
Topographic maps are therefore 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 concerning 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 (for example users interested in locating flooding risks, identifying commercial uses of properties or access points in buildings for emergency services).
The decision and broader interpretation as to what can be considered protectable as a database is likely to see an increase in cases with parties seeking to rely upon the Directive. It is therefore encouraging that the CJEU has taken a clear, sensible and commercial approach in this case. Modern map producers will also 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.