Ban on Publication of Adjusted Quote-500 list
On 7 November 2008 Hachette Filipacchi Media Netherlands B.V. -
in its capacity as publisher of the business magazine Quote - filed
an ex parte request against the company Mediamaatjes B.V. of,
inter alia, former Quote editor-in-chief Jort Kelder.
The Dispute
Each year Quote publishes the well-known Quote-500 list in a
special edition. In this list the 500 richest Dutch people with
their estimated assets are mentioned. The reference date for the
determination of the assets was 1 August 2008 and the publication
date of the Quote-500 magazine was 6 November 2008. According to
Mediamaatjes, due to the turbulent times on the financial markets,
on the date of publication of the magazine the estimated assets in
the Quote 500 were out of date. Next, Mediamaatjes published a
corrected version on its website http://925.nl/. This corrected list is the
Quote-500 list adjusted by a calculating tool named Stoxx.
Hachette argued that Mediamaatjes used the Quote-500 list for the
corrected list, without itself having invested in the composition
thereof. Hachette wanted to defend itself against the publication
of the list corrected by Mediamaatjes and claimed a ban on
publication.
Hachette primarily argued that Mediamaatjes was infringing its
database right and, alternatively, that it was infringing the
copyright protection of impersonal documents. This last claim was
not further discussed because the case was dealt with on the basis
of database law.
The Adjudication: Is the Quote 500 a Database?
The Court in preliminary relief proceedings ruled
that the Quote 500 as such can be regarded as a database and thus
follows the argument of Hachette that the list meets the four
requirements in this respect, namely:
- a collection of independent works, data or other
materials;
- arranged in a systematic or methodical way; and
- individually accessible by electronic or other means;
- and for which the acquisition, control or presentation of
the contents, evaluated qualitatively or quantitatively, bears
witness to a substantial investment (Section 1 under a Database
Act).
Mediamaatjes extracted the contents of and reused the database
within the meaning of Section 2 (1) under a of the Database Act,
now that Mediamaatjes copied the database in its entirety,
transferred the contents thereof to its website and published the
database on its website with the application of a correction
factor.
Hachette's claim is allowed by the Court in preliminary
relief proceedings on the basis of database law. Mediamaatjes must
cease and desist publication. The Court in preliminary relief
proceedings furthermore ordered Mediamaatjes to pay a penalty of
EUR50,000 for each day or part thereof that Mediamaatjes acts in
violation of this ban.
Conclusion
It follows from the petition that the making of the Quote 500 is
not a spin-off of the main activities of the publisher, but that
the Quote 500 itself is the main activity of an editorial staff
that was especially appointed for that purpose. The yearly costs of
making the Quote 500 are EUR269,000. Thus, according to the Court
in preliminary relief proceedings, Hachette sufficiently
substantiated in its petition that there is a "substantial
investment". Now that the other requirements have also been
met, in this case Hachette showed that the Quote 500 can be
regarded as a database, and therefore enjoys protection under the
Database Act.
This case is a fine example of the application of an ex parte
ban as a means of putting pressure in order to enforce database law
as a result of which, probably with a view to the danger of
forfeiting high penalties, Mediamaatjes removed the adjusted rich
list from its internet page.