ELZABURU Blog - Industrial and Intellectual Property

Tag Archives: Databases

Legal protection of Databases

base de datos, iconos, azul

Judgment of the Court of Justice (Fifth Chamber), case C-762/19

The Court of Justice of the European Union (hereinafter, the “CJEU”) has issued a ruling in case C-762/19 concerning the prohibition on any third party to “extract” or “re-utilize”, without the maker’s permission, all or a substantial part of the contents of a database.

base de datos, iconos, azul

 

The issue raised in the proceedings concerns the compatibility of the operation of a specialized search engine with the sui generis right contained in Directive 96/9, a matter that the Regional Court of Riga (Latvia) referred to the CJEU for a preliminary ruling in two questions which sought to determine, firstly, whether the display, in the list of results generated by a specialized search engine, of a hyperlink that redirects the user of that search engine to a website, provided by a third party, where the contents of a database of job advertisements can be consulted, falls within the definition of “re-utilization” set out in Article 7(2)(b) of Directive 96/9 and, secondly, whether the information from the meta tags of that website displayed by the search engine is to be interpreted as falling within the definition of “extraction” set out in Article 7(2)(a) of said Directive.

In order to answer these questions, we must first define the scope and purpose of the protection of the sui generis right. The purpose of the sui generis right is to ensure the protection of a substantial investment in the obtaining, verification or presentation of the contents of a database, granting the maker of the database the possibility of preventing the unauthorized extraction or re-utilization of all or a substantial part of the contents, so that the person who has taken the initiative and assumed the risk of making a substantial investment receives a return on his or her investment.

It is also important to note that pursuant to Article 7 of Directive 96/9, the protection of a database by the sui generis right is justified only if there has been quantitatively or qualitatively a substantial investment in the obtaining, verification or presentation of the contents of the database.

With regard to the criteria for concluding that an act by a user constitutes an “extraction” or “re-utilization” within the meaning of Directive 96/9, “extraction” is defined as “the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means and in any form”. As for “re-utilization”, it covers “any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission”. Both concepts must be interpreted as referring to any act of appropriating and making available to the public, without the consent of the maker of the database, the results of his or her investment, thus depriving him or her of revenue which should have enabled him or her to redeem the cost of that investment.

The search engine at issue in the proceedings makes it possible to simultaneously explore, by means other than that provided for by the maker of the database concerned, the entire content of several databases, including the plaintiff’s, by making that content available to its own users. By providing the possibility of searching several databases simultaneously, that specialized search engine gives users access, on its own website, to job advertisements contained in those third-party databases. Thus, users are provided with access to the entirety of the content of third-party databases by a means other than that provided for by the makers of those databases.

In the light of the above considerations, the answer to the questions referred for a preliminary ruling is that Article 7(1) and (2) of Directive 96/9 must be interpreted as meaning that an Internet search engine specializing in searching the contents of databases, which copies or indexes all or a substantial part of a database freely accessible on the Internet and then allows its users to search that database on its own website according to criteria relevant to its content, is “extracting” or “re-utilizing” that content within the meaning of that provision, which may be prohibited by the maker of such a database where those acts adversely affect its investment in the obtaining, verification or presentation of that content, namely, that they constitute a risk to the possibility of redeeming that investment through the normal operation of the database in question.

Author: Claudia Pérez Moneu

Visit our website

 

Fashion Law. Fashion 4.0: Websites, Apps & Social Networks (XI)

ELZABURU has had the pleasure of working together with the publisher Thomson-ReutersAranzadi on Fashion Law, a pioneering work in Spain on the subject of fashion law, which was presented on 16 April.

In these short weekly summaries, the professionals at ELZABURU who participated in the work offer us a brief outline of their contributions:

Fashion 4.0. Websites, Apps & Social Networks: protection and Defence

The digital age has had a profound effect the world of fashion, transforming the way it designs, sells or communicates. No one can now operate solely through traditional channels and must reach out to consumers via online media.

Therefore, it is crucial to limit the risks and protect the intangible assets of the business.

In this regard, holding the exclusive rights to a domain identifying the business is extremely important, particularly with a view to preventing its use by third parties. To obtain exclusive rights, the domain must be registered before the corresponding body, depending on the domain of interest, which may be national (.es, .us, .uk, etc.) or generic (.com, .net, .biz, etc.).

The content, appearance and layout of a website can also be protected. Any original content included on the website (images, text, videos, illustrations, etc.) are protected by the Copyright Act. This protection also extends to the content uploaded to social networks, as it is considered equivalent to that included on corporate websites. Similarly, websites from which data and information are extracted or compiled can be protected as databases, either as a work or as a sui generis database right, provided that the investment made by the owner is duly accredited, the latter form being the more usual.

All this must be supported by a contractual protection strategy, with website use policies being an ideal tool to restrict the reuse of the intangible assets of the business.

The protection of mobile apps has a similar structure to that of websites with regard to their content, the main difference being that an app may additionally be protected as a computer programme or software, in accordance with the provisions of the Copyright Act.

Finally, it is important not to overlook the registration of those trademarks used to identify the business on online platforms.

The reality is that this digital revolution is constantly evolving, posing new challenges and strategies focussed on improving the customer’s experience, in adapting physical shops to new technologies, experimenting with chatbots, customising garments through technical developments in the materials used, as in the case of sportswear, whose technical features are adapted to the requirements of top-level athletes, or the design of clothing whose colours depending on the weather conditions, while adapting business models in line with new sustainability objectives or targeted improvements in environmental conditions, for instance, through the use of renewable energies in the manufacture of garments or that of new, low-impact means of production.

Author: Martín Bello Castro

Visit our website: http://www.elzaburu.es/en

Blog entries in the series Fashion Law:

1.Trademark protection in the fashion sector (23.04.2018)

2.Design protection in the fashion sector (30.04.2018)

3.Patent protection in the fashion sector (07.05.2018)

4.Protection of fashion through copyright (21.05.2018)

5. Image rights in the fashion sector (28.05.2018)

6.Fashion Law. Data Fashion (04.06.2018)

7.Counterfeiting in the fashion sector (11.06.2018)

8.Exhaustion of rights in the fashion sector (18.06.2018)

9.Corporate reputation in the fashion sector (25.06.2018)

10. Protection of the commercial imagen of a fashion brand (04.07.2018)

11. Websites, Apps & Social Networks (13.07.2018)

12. Valuation of intangible assets (17.07.2018)

13. Licensing (06.09.2018)

Search

Archivo

Formulario de suscripcion

Sí, soy humano*

Se ha enviado un mensaje de confirmación; por favor, haga clic en el enlace de confirmación para verificar su suscripción.
Este email ya está en uso
Debes escribir un email válido
Debes cliquear el captcha
El captcha no es correcto