Recent French decisions on database protection: Towards a more consistent and compliant approach with the Court of Justice’s case law?

Estelle Derclaye

Abstract


Since the official date of implementation of the Database Directive[1], namely the 1 January 1998, 14 years have now already passed. During this decade and a half, French courts have handed down around 30 decisions on database protection. Between 1998 and 2004, the year when the Court of Justice of the European Union (CJEU) handed down its first four parallel rulings on the sui generis right[2], the French case law on the sui generis right was quite erratic. Admittedly, such state of affairs was not dissimilar in other Member States owing to the sheer novelty of the sui generis right and the vagueness of many of the Database Directive’s provisions. While the sui generis right was meant to replace the tort of slavish copying still existing in many Member States on the continent, French decisions fluctuated between cumulating the two actions and thus repairing the same damage twice, and rejecting the overlap. Since its 2004 rulings, the CJEU handed down two more decisions mainly confirming its case law on infringement[3] and one more is imminent.[4]

Have the French courts adjusted their rulings to follow the CJEU’s precedents since 2004? This comment compares the French case law before its British Horseracing Board and Fixtures Marketing decisions with French case law decided after them and also checks whether these newer French decisions comply with the CJEU case law. The comment focuses on the sui generis right, including the overlap between the latter and slavish copying also known as parasitism. Copyright is left aside mainly because the French criterion of originality and other aspects of the protection by copyright before the implementation were very similar to the Database Directive’s provisions on the matter so that most decisions do not bring about a change in the law.


[1] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 077, 27/03/1996, p. 20-28, art. 16(1) (further referred to as "the Database Directive”).

[2] Case C-444/02 Fixtures Marketing Ltd  v Organismos Prognostikon Agonon Podosfairou (OPAP) [2005] 1 CMLR 16; Case C-46/02 Fixtures Marketing Ltd v Oy Veikkaus AB  [2005] ECDR 2; Case C-338/02 Fixtures Marketing Ltd v Svenska Spel AB [2005] ECDR 4; Case C-203/02 The British Horseracing Board Ltd v William Hill Organisation Ltd [2005] 1 CMLR 15.

[3] Case C-304/07 Directmedia Publishing GmbH v Albert-Ludwigs-Universitat Freiburg [2008] ECR I-7565; Case C-545/07 Apis-Hristovich EOOD v Lakorda AD [2009] ECR I-1627.

[4] Case C-604/10 Football Dataco et al v Yahoo et al, in which the Advocate General handed down its Opinion on 15 December 2011, available on www.curia.europa.eu 


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