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 Mnchen (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 Mnchen (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.

Conclusion

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.

This article was previously published as the Cover Story of
Intellectual Property Magazine Dec 2015/ Jan 2016 edition

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