Successful reliance on a database right? Arnhem/Leeuwarden court of appeal offers new guidance

The substantial investment

The basis of the sui generis database right (unlike copyright database protection) is to protect the investment in the database. It is against this background of pure performance protection that a large part of database judgments assess whether the producer has sufficiently invested in the creation of the database, and therefore whether protection is justified.

The same was the case in one of the recent decisions of the Arnhem-Leeuwarden court of appeal, in which the court of appeal stressed the importance of a proper justification of the investment made in obtaining, verifying or presenting the data in the database (ECLI:NL:GHARL:2025:2565).

What was it about?

Tracpartz has a webshop for the sale of tractor parts for old mini tractors from Japan. In this webshop, Tracpartz mentions for the tractor parts concerned, in addition to the information provided by the manufacturer, for which other tractor brands and/or types a certain part is suitable (special product information). Another webshop, the respondent in this case, copied this special product information on its own website, which Tracpartz claims infringes its alleged database right.

The court found that the webshop had indeed copied Tracpartz's special product information. To assess whether this also constituted an infringement of an alleged database right of Tracpartz, the court of appeal first had to assess whether a database right existed as provided under the under the Database Act.

Existence of a database right?

The existence of a database right requires that the obtaining, verification or presentation of the database evidences substantial investment. This  substantial investment must relate to the obtaining, verifying or presenting of the contents of the database, and explicitly not to the creation of the data itself, according to established case law of the Court of Justice of the EU.[1] In the first instance, the district court ruled that the special product information was created by Tracpartz to be used in its workshop, as a result of which the investments therein do not fall under the substantial investment as required for a database right. [2]

On appeal, the court of appeal confirmed this judgment. The court of appeal distinguishes between investments in the 'verification' of the correctness of the contents of the database, and investments used in the 'creation phase' of the data. The first category can lead to substantial investments in the sense of the Database Act, the second category does not. [3]

The court of appeal further notes that a substantial investment can consist of human, financial as well as technical efforts or resources.[4] A condition is, however, that Tracpartz substantiates the use of these resources separately from the resources it used to create the data. For example, salary costs of employees who processed orders as part of the online shop, keeping track of which parts fit which tractor, do not count as investments within the meaning of the Database Act.

Despite the fact that it ended here for Tracpartz, the court of appeal does hint in this judgment at the factors that could have led to a successful reliance on the existence of a database right. If, for example, Tracpartz had supplemented the processing of the special product information from Japan in its database with the compatibility information from its employees at the workshop, and had arranged this and made this accessible, the entirety of this could possibly qualify as an investment in a database, according to the court of appeal. Whether this investment is then also 'substantial' will depend on the circumstances of the case.

Who is the producer of a database?

In the second judgment of the Arnhem-Leeuwarden court of appeal (ECLI:NL:GHARL:2025:1410), a claim to the existence of a database right also failed. This judgment concerned a research project by Utrecht University on the development of Dutch children. The contractor was active in the field of childcare and carried out activities within the University's project.

The parties agreed that the research data collected constituted a database within the meaning of the Database Act. However, the parties had different views on whether the contractor could also be considered a producer of the database. The court noted that in order for a party to qualify as a 'producer' and thus rightsholder of a database right, it is required that this party (co)bears the risk of the investments made for the database. This is in line with the aforementioned rationale of the database right, which is to protect investment risk.

In this ruling, it was the University that had made the investment in the database and bore the risk of generating sufficient finances to maintain the database. The contractor may have contributed to the creation of the data, but did not bear any investment risk. After all, the University had simply paid the contractor for its work. The contractor was therefore not entitled to invoke the database right and the court of appeal upheld the district court's judgment.

Successful reliance on a database right?

Both decisions of the Arnhem-Leeuwarden court of appeal show that a reliance on a database right is not straightforward and must be well substantiated. The judgments emphasise the purpose of the Database Act to promote and protect investments in systems for storing and processing data, thus contributing to the development of the information market.[5] Clearly, database law does not serve to protect database content, but to protect the investment in obtaining, verifying or presenting that content. It is the party that has made that investment, and thus bears the investment risk, that is entitled to the protection of the database right.

Practical advise: always ensure that it can be demonstrated that the investment risk is borne, for example by demonstrating that a substantial investment has been made in obtaining, verifying or presenting the data. Do you want to know whether you can successfully invoke a database right, or do you have any other questions? Please do not hesitate to get in touch with Paul Trapman or Ilse 't Mannetje.