[OSM-legal-talk] Proposal for a revision of JA:Available Data

Tom Hummel tom at bluespice.org
Fri Jul 5 12:47:34 UTC 2019


> because it would be unfair if websites of small business are allowed
> and those of large comanies are not.

I don’t seem to be able to follow the problem here, hope you can help
me: how can a collection of opening hours be a protectable database
under directive 96/9/EG (speaking for the EU)?

> Maybe it can be argued that company has no substantial investment
> here? In neither obtaining nor verification nor presentation?
> 
> Presentation is simple one - there is clearly no substantial
> investment here. Not sure about what is understood as "substantial"
> for obtaining or verification.

You’re on the right path here.

First, only investments pertaining to obtaining or verification are
understood as investments under art. 7 par. I directive 96/9/EG. The
expenditure that incurred in the process of generating that data does
not.

Par. 46 of the court (EuGH, 09.11.2004 - C-203/02) adopted opinion of
the advocate general states:

« All the language versions thus allow of an interpretation according
to which, although ‘obtaining’ within the meaning of Article 7(1) of
the Directive does not cover the mere production of data, that is to
say, the generation of data, (10) and thus not the preparatory phase,
(11) where the creation of data coincides with its collection and
screening, the protection of the Directive kicks in. »¹

My question would be: how can a chain-business or even a franchise
business claim any investment in obtaining the opening hours of their
associated places of operation? In many cases they even dictate these
things, or simply ask the franchisee, or even demand the operators to
enter them into a list themselves.

I agree that the term ”substantial” rises some dificulty and I have
some trouble finding good guidelines.

¹
http://curia.europa.eu/juris/document/document.jsf?text=&docid=48761&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1



More information about the legal-talk mailing list