The French Supreme Court has dismissed a claim that an aggregation service that extracted real estate advertisements from websites infringed database right. This illustrates the narrow scope of database rights after the 2004 decision of the European Court of Justice in BHB v William Hill.
Precom (a manager of real estate advertisements for newspapers) and Ouest France Multimedia (an online newspaper publisher) were in dispute with Direct Annonces, which offered a daily bulletin service for real estate professionals containing private real estate advertisements that it extracted from various websites including one belonging to Ouest France.
The French Intellectual Property Code (which implements the European Database Directive 96/9/EC) states that:
The producer of a database, understood as the person who takes the initiative and the risk of the corresponding investments, benefits from protection of the contents of the database when its constitution, verification or presentation shows that there has been a substantial financial, technical or human investment
Any unauthorised extraction of a substantial part (whether measured in quantitative or qualitative terms) of such a protected database protected by this right is unlawful.
On this basis, Precom and Ouest France Multimedia initiated proceedings against Direct Annonces for the wrongful extraction of real estate ads from their database and sought EUR 85,000 in damages.
In its 9 November 2004 decision in The British Horseracing Board v William Hill Organization, the European Court of Justice held that investing in obtaining the contents of a database refers to the resources needed to constitute, verify or present information that has already been independently collected to form a database and not to the creation of the information itself.
Precom provided evidence of investment through the implementation of call centres at a number of sites, the existence of 46 agencies and the development of high-performance software. This included 40 call centre agents and a budget of EUR 790,000 per call centre.
The Court of Appeal of Rennes dismissed Precom and Ouest France Multimedia’s claim because: (i) they had not allocated their ‘investments’ to different activities; and (ii) the creation of the real estate advertisements and their integration into the database was merged as one operation, with no real verification of the real estate advertisements being made by Precom. The Court of Appeal added that the underlying motivation for creating a separate database right was to stimulate the development of pre-existing data storage and processing systems, and that this was not Precom’s aim.
On 5 March 2009, The French Supreme Court confirmed this decision stating that the ‘investments’ made by the claimants only related to the creation of the real estate advertisements themselves.