Belgium vs Infobase: no additional restrictions on commercial re-use

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Belgian national register for company data may not freely impose additional restrictions on the commercial re-use of its data.

Author: Hans Graux

Metadata

  • Thesaurus terms: company data, commercial re-use, licensing, restrictive licences
  • Regulatory Body: Court of Appeal of Brussels
  • Jurisdiction: Belgium
  • Legal provisions concerned:
    Directive 2003/98/EC on the re-use of public sector information
    Belgian law of 7 March 2007 transposing this Directive
    Belgian Royal Decree of 18 July 2008 on the commercial re-use of public data in the Crossroads Bank for Enterprises
  • Case identifier: 2009/KR/104 – InfoBase Europe SA v. Belgium
  • Date: 19 November 2009

Short impact analysis
The Brussels Court of Appeal enjoined the Belgian Crossroads Bank for Enterprises, which operates the public register for company data, from imposing specific licensing terms for the commercial re-use of its data that were not foreseen under Belgian law. Specifically, the Court ruled that it was unreasonable and excessive in this case to demand re-users to provide corrections to the Crossroads Bank. Other restrictions, notably auditing rights and dissemination restrictions, were however considered lawful. The case illustrates the importance of ensuring that any licensing conditions are fair, proportionate and non-discriminatory, as required by the PSI Directive.

Summary

The Belgian Crossroads Bank for Enterprises (CBE) is the official company register held by the Belgian Federal Public Service for the Economy. As with many such registers, the CBE contains fundamental information on all companies or entrepreneurs established or registered through a local affiliate in Belgium, including e.g. their official name, seat of establishment, legal form, field of activities, etc.

Much of this information is made available to the public via a Public Search portal, free of charge. However, this public access right comes with certain restrictions, notably the use of manual data entry forms. Commercial re-users requiring easier access to large amounts of information need to obtain specific authorisations. One of the companies with an authorisation to access and re-use the CBE for commercial purposes is InfoBase Europe.

InfoBase and the CBE had already been engaged in a series of legal disputes on InfoBase’s access and re-use rights since the CBE’s establishment in 2003. None the less, the courts had largely upheld InfoBase’s rights until 2008, when a new dispute began.

The law governing the operation and functioning of the CBE permits the Belgian government to set conditions for commercial re-use of the CBE via a Royal Decree. After the adoption of the Belgian PSI Re-use Act in 2007, such a Royal Decree was indeed adopted in July 2008. In December 2008, the CBE informed InfoBase that its existing access arrangements would be terminated as of 1 January 2009, and that InfoBase could obtain a licence complying with the requirements of the new Royal Decree.

However, upon analysis, InfoBase found that the conditions of the licence were more restrictive than the provisions of the Royal Decree on a number of points, including:

  • an obligation for InfoBase to provide its own information if it found any errors in the CBE;
  • an obligation for InfoBase to accept occasional audits by the Belgian State;
  • a contractual ban on re-using the date of birth of natural persons (entrepreneurs) in the CBE;
  • limitations stopping InfoBase from offering CBE data to third parties free of charge, or to third parties who could not be considered as end users themselves.

InfoBase refused to accept these terms. As negotiations to change the terms proved unsuccessful, InfoBase initiated new legal proceedings, arguing that the licence was unlawful and that its existing access rights should be maintained. An initial unilateral proceeding granted this request to extend the access rights. However, a first instance court then rejected InfoBase’s claims, leading to the appeal addressed by this decision of the Court of Appeal of Brussels.

The Court rejected the Belgian State’s claims that it had a discretionary authority to draft appropriate licensing provisions for the CBE data. It noted that the PSI Directive and the Belgian PSI law only tolerated licensing restrictions that would not unnecessarily restrict possibilities for re-use and would not be used to restrict competition. Furthermore, licensing conditions should be fair, proportionate and non-discriminatory.

Assessing each of the aforementioned licence restrictions against each of these criteria, the Court found that the obligation for InfoBase to provide free corrections to the CBE if it found discrepancies between its own data and CBE data was an unjustified infringement of InfoBase’s database rights. Specifically, this obligation would allow the CBE to gradually extract data from InfoBase’s database and add this to the CBE, thus siphoning off the added value resulting from InfoBase’s own investments. The improved CBE data (containing InfoBase’s corrections) would moreover then be resold by the CBE to InfoBase’s competitors. The Court found this to be disproportionate.

On the other hand, the auditing rights (at the Belgian government’s own expense and limited exclusively to documents relevant for the use of CBE information) were found to be prima facie lawful, as were the exclusion of the date of birth as re-usable data and the two dissemination restrictions to third parties.

Thus, the Court imposed an injunction on the CBE, enjoining it from making commercial re-use of the CBE data dependent on the acceptance of a correction obligation by the commercial re-user. Other restrictions were however left to stand, as they were not seen as prima facia unlawful for the purposes of these proceedings.

Links
http://jure.juridat.just.fgov.be/view_decision?justel=F-20091119-5&idxc_...
http://economie.fgov.be/fr/entreprises/BCE/
http://economie.fgov.be/nl/ondernemingen/KBO/Pubd/PuS/

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