[OSM-legal-talk] decision removing data

[Francis Davey]

On 6 August 2010 19:42, 80n <80n80n at gmail.com> wrote:
>>
>> >
>> > What's the criteria in the EU?  Do you know?
>> >
>>
>> "own intellectual creation"
>>
>> Article 3(1) of 96/9/EC:
>>
>> "1. In accordance with this Directive, databases which, by reason of
>> the selection or arrangement of their contents, constitute the
>> author's own intellectual creation shall be protected as such by
>> copyright. No other criteria shall be applied to determine their
>> eligibility for that protection."
>>
> I was actually asking about the criteria for traditional copyright not
> database rights.  However the reference above is interesting in that it

That is the criterion for traditional copyright and not database
rights. The Database Directive actually did two things:

(1) it harmonised the threshold criterion for *copyright* in databases
(see above)

(2) it created a new "database right", the threshold for which you
will find in article 7(1):

"1. Member States shall provide for a right for the maker of a
database which shows that there has been qualitatively and/or
quantitatively a substantial investment in either the obtaining,
verification or presentation of the contents to prevent extraction
and/or re-utilization of the whole or of a substantial part, evaluated
qualitatively and/or quantitatively, of the contents of that
database."

In other words there has to be "substantial investment" in one of: (i)
obtaining; (ii) verification or (iii) presentation, where that
substantial investment could be quantitative or qualitative.

> asserts that selection and arrangement is required to earn a database
> right.  Is that a correct interpretation of what that says?  Would a dump of
> a list of facts with no selection or arrangement (for example a list of
> names of all elected Members of Parliament) be protected by database rights?
>

It *could* do, but whether it did or not would depend on whether there
had been the relevant substantial investment. In other words you
cannot ask of a database whether or not it could be the subject of the
database right, without also knowing something more about how it was
created.

If the UK Parliament tried to assert a database right over its list of
MPs then such a claim might well fail (since it has that list anyway)
whereas a carefully checked list generated by someone else (eg by My
Society) might be different. The "Fixtures Marketing" cases being
particularly relevant:

http://www.out-law.com/page-5055

-- 
Francis Davey