The matter at hand
The Land of Bavaria publishes topographic maps covering the entire Federal state of Bavaria. Verlag Esterbauer is an Austrian publisher which publishes, amongst other things, atlases, tour books and maps for cyclists, mountain bikers and inline skaters. The Land of Bavaria considers that Verlag Esterbauer made unlawful use of its topographic maps and appropriated the underlying data in order to produce the material for its maps.
The German Federal Court of Justice has doubts as to whether the topographic maps at hand come within the definition of ‘database’ within the meaning of Article 1(2) of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases (‘a collection of independent materials’). More specifically, the referring court has questions as to whether the data describing the nature of specific points of the earth’s surface constitute ‘independent materials’ within the meaning of Article 1(2) of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases.
The ECJ has previously held that ‘independent materials’ exist within the meaning of Article 1(2) of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases when the materials can be separated from one another without the value of their informative content being affected.
In those circumstances the Federal Court of Justice referred the question to the ECJ whether, in order to determine if a collection of independent materials exists because the materials can be separated from one another without the value of their informative content being affected, every conceivable informative value is 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.
The judgment of the ECJ
With reference to the broad definition of the database concept in the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases (‘unencumbered by considerations of a formal, technical or material nature’), the ECJ starts out with establishing that analogue topographic maps can be recognised as databases within the meaning of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases. In addition, it refers to the fact that Article 1(1) of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases stipulates that databases in ‘any forms’ are protected, and that recital 14 of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases mentions that the protection granted relates to both electronic and non-electronic databases (paragraph 13-14).
The ECJ reiterates that the classification as a database is dependent ''on the existence of a ‘collection of independent materials’ that is to say materials which are separable from each other without their informative, literary, musical or other value being affected'' (paragraph 17).
In that respect the ECJ also reiterates that ''not only an individual piece of information, but also a combination of pieces of information can constitute an independent material in the sense of Article 1(2) of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases'' (paragraph 17).
The ECJ rejects the notion that the informative value must be assessed in light of the use that would be made by a typical user. That is too narrow a criterion. The informative value ''must be assessed in the light of the value of the information for each third party interested by the extracted material. Therefore, information from a collection which can be utilised for financial gain and in an autonomous manner, constitutes ‘independent materials’ from a database within the meaning of Article 1(2) of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases'' (paragraph 28).