Landmark Nederland BV v Amsterdam City Council
The Netherlands: The case between: Landmark and Amsterdam City Council (updated 7 July 2009)
Key dates of the case
10 May 2006 Landmark submit request to provide information for reuse
15 August 2006 Amsterdam City Council refuses the request
22 September 2006 Hearing in summary proceedings (paper list delivered but reuse not allowed)
4 January 2007 Advice of Objections Committee that Landmark should receive data
11 January 2007 Decision of Amsterdam City Council allows reuse against payment of cost-based compensation and subject to licence restrictions
26 February 2007 Amsterdam provides address list to Landmark pending fixing of compensation and agreement on licence restrictions
22 August 2007 Amsterdam sets compensation
11 February 2008 Court invalidates decision of 11 January 2007
17 March 2008 Amsterdam City Council appeals court decision
29 April 2009 Court rejects the Amsterdam City Council appeal
Online decisions and public reporting
Utrecht University (Prof. Van Engelen ) - IEPT20080206, Rb Amsterdam, Landmark v Gemeente Amsterdam (Dutch language)
Automatisering gids - RECHTSPRAAK Beroep Amsterdam op Databankenwet afgewezen Rechter schept duidelijkheid (Dutch language PDF)
Outline of Case
Amsterdam court ruling denies database right in City Council information
In its decision of 11 February 2008, the Amsterdam District Court has rendered invalid a decision of the Amsterdam City Council, in which it required an annual license fee and imposed license restrictions on the use of data from its environmental database by Landmark, a leading supplier of land and property search information.
The Court ruled that the City Council does not have a database right in the information which it gathered as part of its public task and for which it received government subsidy. The City Council does not qualify as a ‘producer of a database’, as defined in the EU Database Directive, since it does not carry the risk of the investment it has made. Public funding and government subsidies cannot be equated to an investment, according to the Court. In addition, the Court ruled that the database containing the environmental data did not qualify as a protectable database under the Directive, since there was no evidence that a ‘substantial investment’ had been made in the obtaining, control or presentation of the database.
Landmark had in May 2006 filed a request on the basis of the Dutch Government Information Act (“WOB”) for an address list of 12,000 locations in the city, indicating whether a soil contamination survey had been carried out. Landmark wished to use this information for its Enviroscan reports on the environment of specific locations, which it provides on request to real estate agents. After initial refusal, the Council claimed a database right on the information and invoked the Public Sector Information Re-use Directive.
In the Netherlands, the Directive has been implemented in the WOB and the government has decided that in principle information should be provided for re-use against payment of the costs of the carrier of the data (cd-rom, dvd etc.). However, if the information requested for re-use is contained in a database in which a government agency owns a database right the government agency may request compensation of the actual costs of the database.
On the assumption that it holds a database right in the relevant information, the Amsterdam Council demanded payment of an annual fee and imposed license restrictions on the use of the information. In addition to the one year limit on the license, the Council restricted the purpose for which the information could be used and prohibited transfer of the information to a third party.
The Amsterdam City Council has appealed the Amsterdam Court ruling and a decision on appeal may be expected by the end of 2008 or early 2009.
On the 29 April 2009 the Raad van State, (Council of State: advisory body and administrative court) published the decision on the appeal. the Court rejected the appeal and confirmed the Courts decisions in favour of Landmark. (English translation: WORD document) (Dutch: PDF Version - Dutch language)
On 7 May 2009 Landmark Nederlands published a press release on the Raad van State decision. Dutch (PDF), English (PDF)
Case Notes
Landmark operates in Germany, The Netherlands and the UK. The Dutch company Landmark Nederland BV was established in October 2006.
Related ePSIplus news items
Case last updated: 7 July 2009