The revival of European database right?

Abstract

Some four years on from the European Court of Justice's (ECJ) ruling in the British Horseracing Board (BHB) and Fixtures Marketing cases, the ECJ is poised once again to look at database right. This so-called sui generis right was created just over ten years ago through the implementation of the 1996 European Directive on legal protection of databases, but many thought that the BHB and Fixtures Marketing cases had led to its early demise. It is fair to say that, in the UK at least, there have been few signs of any resurgence in recent years, other than in the odd case in the employment law context, where the strength and ambit of the right cannot be considered to have been seriously assessed.1 Database makers and owners in the database marketing sector will therefore be interested to learn of some recent indications that the right might be stronger in some respects than practitioners had thought. Advocate General Sharpston has delivered an opinion on the Directmedia Publishing v Albert-Ludwigs-Universität Freiburg case,2 to be heard before the ECJ, which suggests that the infringing act of ‘extraction’ should be interpreted broadly. The issues that will be considered by the European Court, the Advocate General's views and the potential implications for database marketers are analysed below.