When we do not have oil, we need databases. Based on this principle, the European Directive 96/9/EC of 11 March 1996 has provided a "sui generis" that protects the producer's investment database. But only on condition that the investment is substantial. Judgement delivered on 03.05.2009 by the 1st Civil Chamber of Supreme Court clarifies the scope of expenditure accounted for. Investment is analyzed strictly. To benefit from the valuable protection, both IT managers and financial gain out their expenses. The high court's guidance.
The facts are simple. Ouest France Multimédia society operates the website "www.ouestfrance.com. This includes listings from property sales between individuals released in editions of the newspaper Ouest France. Ads Direct society systematically extract new listings for inclusion in a press review addressed to its subscribers, real estate agents.
Article L.341-1 of the Intellectual Property Code allows the producer database to protect themselves from such behavior. It transposes into French law of Directive 96/9/EC. But the company Ouest France Multimédia could she rely?
The Supreme court said no. It is based on the lack of investment in the obtaining of the contents of the database.
To do this, it specifies how it is to be heard, repeating the European Court of Justice of European Communities of 11.09.2004, in the case of "The British Horseracing Board Ltd. v. William Hill Organization Ltd". It is divided into two stages.
First, what is included in the scope of investment. These are the resources used to seek out existing independent materials and collect them in the database. For the CIO, what are the "tips" that will ask for supplying said basic extractors, interfaces, mappers, middleware, ...
Secondly, what is excluded from the scope investment. These are the means used for creating elements of the database content. For the CIO, it is the "datas", in the primary file, before extraction into the database.
Thus, the classical architecture of information systems can easily end up in the rule by the 1st Chamber of the Court of Cassation. This is a welcome and, where applicable, focus effort on related "tips" to benefit from the valuable protection.
But the High court does not stop there. It is also to the CFO.
Indeed, it is claimed that the investments could not be assigned to one sector of the database. So she suggested that each producer to maintain accurate accounting to justify the protection of its database.
Ultimately, the decision Ouest France Multimédia does more than enlighten us on the right databases.
It reminds us that the right fits strongly with the operation Company. It is an invitation to create a collective work, in which the contributions of lawyers, computer and financial would merge to benefit the company.
Michel PASOTTI - Lawyer at the Paris Bar - Doctor of Economics - Paris, 17/03/2009
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