The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 5 November 2015

C-490/14 - Verlag Esterbauer: Get off my map!

The CJEU has ruled in Case C-490/14 Verlag Esterbauer, a referral from the German Bundesgerichtshof in a dispute between the Freistaat Bayern and the publishing house Esterbauer. The facts, briefly stated, are such that the Land of Bavaria produces topographic maps of Bavaria and publishes them in analog (hard copy) form. Esterbauer scanned those copies, extracted information from it (e.g., the location and type of a building) and produced new maps with highlighted bike trails, primarily aimed at bikers and hikers.

Bavaria sued and largely won, except that the second instance court dismissed the Land of Bavaria’s claims based on protection of databases pursuant to Paragraph 87a et seq. UrhG [which implements the Database Directive, Directive 96/9]. The Bundesgerichtshof, on appeal, had doubts about the scope of Art. 1 Database Directive, which provides, in part:
1.This Directive concerns the legal protection of databases in any form. 
2. For the purposes of this Directive, “database” shall mean 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 BGH asked, in essence, whether Article 1(2) of Directive 96/9 must be interpreted as meaning that geographical data extracted from a topographic map in order that a third party may produce and market another map retain, after extraction, sufficient informative value to be held to be ‘independent materials’ of a ‘database’ within the meaning of that provision.

Cats have maps too
The CJEU's answer is a clear yes. It notes that the term "database" is to be given a wide interpretation. Analog data, such as a printed map, can form a database. "Independent material"are materials which are separable from one another without their informative, literary, artistic, musical or other value being affected. The informative value of material from a collection is not affected  if it has autonomous informative value after being extracted from the collection concerned. Whether that is the case is not to be assessed from the viewpoint of the typical user of a map, but for each third party interested by the extracted material (para. 27).

The fact that, typically, the informative value of material that is taken out of its context declines does not mean that it has no autonomous informative value after being extracted from the collection concerned. Therefore the information extracted by Verlag Esterbauer from the Land of Bavaria’s topographic maps constitutes ‘independent materials’ from a ‘database’ within the meaning of Article 1(2) of Directive 96/9 since, once extracted, that information provides (some of the) customers of the company using that information with relevant information.

This Kat wonders why the "individually accessible" requirement of art. 1(2) Database Directive received no attention. In what sense is the information on a topographic map "individually accessible"? Sure, you can only look at (or scan) part of the (information on the) map, and then you only "access" the information on that part of the map, but if interpreted this wide, the criteria looses all its meaning. While the outcome of the case may not be surprising in view of the CJEU's case law, try explaining to a lay person that a Babylonian clay tablet dating from the 24th century BC depicting a  map of a river valley between two hills, with cuneiform inscriptions labelling the features on the map, is a database in the sense of European law...


Dave said...

Sorry to be a pedant, but:

"if interpreted this wide, the criteria looses all its meaning"

perhaps should read:

"if interpreted this widely, the criteria loses all its meaning".

Thanks for the article - it is of course much easier to pick holes than it is to create something.

Anonymous said...


And how is your German, Dave?

Anonymous said...

Dave's German is not the point. The "loose" vs "lose" usage is an all too common error made by native and non-native speakers alike. In the UK, they have become far too lax about poor writing and editorial skills.

And by the way, my German colleagues would also rubbish anything written in German which betrays it is written by a non native speaker.

MaxDrei said...

I confirm that here in Germany "loose" is written where "lose" was intended.

Brings to mind the classic (apocryphal?) Heinrich Lübcke-ism

"Equal goes it loose"

as his English translation of

"Gleich geht's los"

("Gleich" can mean "equal" or "straightaway" depending on context).

And then again the classic translation "Zwiebel ruft an" on a Greek restaurant menu for the English "onion rings".

Anonymous said...

If we are being pedantic/semantic, Dave seems to have overlooked the use of "criteria". Just saying.


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