Another Chapter in the Expansion of IPRs

As one of the main competitors in the international race to protect every sort of investment in intangibles, the EU had adopted the Database Directive in 1996. Yet, the scope of the newly created property right in a database is still "under construction". But the European Court of Justice will soon have to decide a bunch of cases (C-444/02, C-203/02, C-338/02, C-46/02) raising some fundamental questions concerning the extension of a database owner's rights.
The plaintiffs provide fixture lists for soccer matches and organize horse races. They compile detailed data of the sport events and store them electronically in databases. Before the events take place the information is made available to various media (radio and television broadcasters, magazines and newspapers) on the basis of licenses. The defendants are bookmakers using the information for the purpose of taking sporting bets. They do not hold any licenses from the organisators but obtain the data from public media. The plaintiffs consider that the bookmakers have infringed their sui generis right under the Database Directive. Are they right?
The opinion of the Advocate General - whose task is to prepare the legal questions for the court - is already issued (click here for a search form and fill in any case number from above or have a look at the press release). If the ECJ follows the line of arguments we will experience a remarkably broadening of the sui generis right. We will learn that the term database should be interpreted widely; that the maker of a database has a right to protection even where the database is only a by-product of an investment primarily directed at a different purpose than creating the database; that in the case of dynamic databases the whole database and not only the changes as such enjoy a new term of protection (as if it was not enough that we are half way to the indefinite copyright already!). But what concerns me most is the Advocate General's idea that re-utilization of the content of a database does not require that the information be obtained from the database itself; the prohibition on re-utilization shall also be applicable if the data are taken from an independent public source.
Let's take a rest and ask: What can you get out of the public domain if you don't put anything in it?