A climbing guide is not necessarily a database
Intellectual property rights protect “all original literary, artistic or scientific creations expressed by any means or medium, tangible or intangible…” in accordance with Article 10 of the Spanish Intellectual Property Law (hereinafter, IPL). Consequently, it does not protect ideas or information, as it considers this to be part of social, cultural, scientific and economic development.
Based on this premise, the concept of originality in the content of the work is fundamental in order to grant protection, since it is through this concept that we can differentiate between those works that deserve protection and those that do not.
Once again, this elusive concept has created a new debate in the Spanish courts. The specific case we are referring to is the conflict derived from the app “climbing” that collects information about climbing areas in Spain, complexity, routes, etc.
The developer of this application was sued by the author of a climbing guide because he considered that the app incorporated data contained in his work. The plaintiff based his claimed on the infringement of article 12 of the LPI since he considered his climbing guide as a database in accordance with said article.
Before deciding on the possible infringement committed by the developer of the app, both courts, the first instance ruling and in the subsequent appeal, focused on resolving the question of whether the climbing guide could be in fact protected by the sui generis right granted to databases or not.
The first instance ruling 153/16 of 10 May 2016 emphasised that the database is defined in Article 12.1 LPI, which establishes that ‘…databases which, by virtue of the selection or arrangement of their contents, constitute intellectual creations are protected, without prejudice, where appropriate, to any rights that may subsist over such contents’.
Based on this definition, the court considered that the arrangement of the information contained in the plaintiff’s guide did not satisfy the requirement of being an intellectual creation since it is a structure which follows a normal and habitual criterion. In other words, the layout of the routes and other information relating to the climb lacked originality as it was a purely logical classification.
After the filing of an appeal by the plaintiff, the Provincial Court of Barcelona analysed the growing jurisprudence and determined that to be protected, the following criteria must be met:
- a) Existence of independent elements, that is, the database must have elements which are separable from each other without the value of their informative, literary, artistic, musical or other content being affected;
- b) And that these independent elements are arranged in a systematic or methodical way and are individually accessible, that is to say, that the collection appears in a fixed medium.
On the other hand, in the appeal the Court also examined the concept of originality, stating that it is relevant only in determining whether the database is eligible for copyright protection.
Furthermore, originality must relate to ‘the discretionary selection of the works or information that will make up the content of the database, the association between them, their classification and arrangement for subsequent storage and retrieval, logical accumulation, with precise titles or headings to establish relations between the information items, documents or works, and, in short, to allow rapid and convenient searches’.
Consequently, the Court dismissed the appeal on the grounds that the work in question lacks its own method or means of detecting one particular piece of information out of the many contained in the work in question. That is, as stated in the ruling itself, that ‘to access a certain climbing area only the geographical criterion is used, an obvious and immediate appeal, and which does not imply any extra originality to access the information sought’.
Therefore, it does not constitute a database, it is not protected and there is no infringement by the defendant.