Copying case highlights protections of EU over US law

Although the suit does not allege federal copyright infringement, the court found that Pollstar, a company that provides world-wide concert tour information on its web site, had the right to proceed with its lawsuit suit against its competitor Gigmania, under California's misappropriation and unfair competition laws.

The suit alleges that Gigmania regularly copies Pollstar's concert information and then posts it on its own web site. Pollstar's suit seeks damages and a court order against, among other things, misappropriation and unfair competition.

Gigmania sought to dismiss the case on the ground that Pollstar's claims are barred under US copyright law. Since 1991, when the US Supreme Court ruled that a phone directory was not “original” enough to be copyrighted because it was “so mechanical or routine as to require no creativity whatsoever”, US courts have been reluctant to protect databases - such as Pollstar's concert information database - from copying by others.

Pollstar contended, however, that its concert information should be entitled to protection under the misappropriation and unfair competition laws of the State of California.

Pollstar pointed out that it incurs substantial cost in gathering its concert information, that Pollstar and Gigmania are direct competitors, that much of the value of Pollstar's concert information is derived from the fact that the concert information is up-to-date, and that the ability of a competitor to “free ride” Pollstar's efforts, jeopardises the existence of Pollstar's service.

The Court agreed with Pollstar and rejected all of Gigmania's arguments for dismissal.

“As far as we are aware, this is the first time since [the phone directory case in 1991] that a court has found that, absent some contractual obligation, a factual database is entitled to legal protection from copying”, said a lawyer for Pollstar. “This decision has significant implications for web site owners who seek to protect time-sensitive, factual information posted on their sites from copying by competitors.”

The case highlights one of the differences between US and European law. Laws on protecting databases were synchronised throughout Europe at the start of 1998. In the UK, this took the form of the Copyright and Rights in Databases Regulations 1997. Basically, in Europe, if your database is used by someone else without permission, you probably have grounds for legal action against them.