Page 221 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

of the contents to prevent extraction and/or re-utilisation of the whole
or of a substantial part, evaluated qualitatively and/or quantitatively,
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of the contents of that database.

The Database Directive distinguishes between the investment in creating new data and
the investment in obtaining existing data to create a new database. Only the latter can fulfil
the substantial investment threshold. In a series of seminal decisions in 2004, the CJEU
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rejected the sui generis right to protect a ‘spin-off database’, namely a database that is created
in the ordinary course of an entity’s business, or more specifically, a database that contains
‘data generated solely by the producer of the database as [a] by-product of his main activity’.
Under this ‘spin-off’ doctrine, the sui generis right only applies to databases containing
data that was ‘sought and obtained from external sources’. To date, the CJEU has not
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issued a decision that supports a sui generis database protection claim based on substantive
investment in ‘obtaining data’. Nor has the CJEU had an opportunity to clarify the meaning
of the ‘verification’ or ‘presentation’ of data. The narrow interpretation of the scope of sui
generis protection has provided little reinforcement for UGC databases because the UGCs
found in most UGC databases are generated on the UGC platform rather than coming from
external sources. Obtaining these UGCs ‘[do] not require any investment independent of that
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required for the creation of the [UGCs] contained in the [UGC database]’. Therefore, the
substantive investment threshold can barely be met.
The CJEU based its distinction between creating data and obtaining data to create a
database on the purpose of the sui generis database right: sui generis protection is intended
‘to promote the investment in “storage” and “processing” systems for existing information,
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and not to promote the creation of material that can be stored inside a database’. If a
database is generated as a necessary by-product of the main activities of an entity, there is
no need to provide additional incentives for its creation. The ‘spin-off’ doctrine also makes
sense in terms of preventing data monopolies. Spin-off databases with the data created by the
entity itself are also sole-source databases, meaning that there is no other way to obtain the

77 Database Directive, art 7.
78 The British Horseracing Board and Others v William Hill, ECLI:EU:C:2004:695, C-203/02, paras. 31-32 <http://curia.
europa.eu/juris/showPdf.jsf;jsessionid=7E43BCFAE3409EC6C1AAEF6EF18A14E2?text=&docid=49633&pageInd
ex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=771444> accessed 19 May 2019; Fixtures Marketing v.
Organismos prognostikon agonon podosfairou AE (OPAP), C-444/02, ECLI:EU:C:2004:697, paraS 30-31; Fixtures
Marketing v. Oy Veikkaus Ab, C-46/02, ECLI:EU:C:2004:694, para 41; Fixtures Marketing v. Svenska Spel AB, C-338/02,
ECLI:EU:C:2004:696, paras 24-25.
79 The British Horseracing v. Hill (n 78) para. 41 (‘the resources used to draw up a list of horses in a race and to carry out
checks in that connection do not constitute investment in the obtaining and verification of the contents of the database in
which that list appears’.); Fixtures Marketing v. OPAP (n 78) para. 41; Fixtures Marketing v. Oy Veikkaus Ab (n 78) para. 41;
Fixtures Marketing v. Svenska Spel AB (n 78) paras 24-25.
80 Fixtures Marketing v. Oy Veikkaus Ab (n 78) para 44.
81 The British Horseracing v. Hill (n 78) para 30.

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