Database right

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The Council of the European Community adopted the directive on the legal protection of databases (Directive 96/9/EC)[1] in 1996. It seeks to harmonise the laws of the member states relating to copyright in databases, and in particular the degree of originality required of them: it also introduces a new sui generis right for database operators. The directive was implemented in the UK from 1 January 1998 by the Copyright and Rights in Databases Regulations 1997 (SI no 3032)[2].

The Regulations insert a new definition of database in the 1988 Act. The term means:

... A collection of independent works, data or other materials which –

(a) are arranged in a systematic or methodical way, and

(b) are individually accessible by electronic or other means.

Databases are no longer treated for copyright purposes as a type of compilation, but remain a type of literary work. (This raises the intriguing possibility that there are databases that are not compilations, and compilations that are not databases.)

Databases only receive copyright protection if they are their author’s own intellectual creation. This is a much higher standards (taken from Dutch and German law) than previously applied in the UK: non-database compilations are still subject to the lesser test, so should more easily obtain protection. A collection of data not arranged in a systematic or methodical way might fit through this loophole.

New section 50D of the Act permits certain acts that would otherwise be restricted by copyright in the database: ‘anything which is necessary for the purposes of access to and use of the contents of the database ...’. Section 296B makes void any contractual term that purports to prohibit or restrict a permitted act.

The effect of the increased standard of originality is that databases will be hard to protect by copyright. The new database right (as the EC’s sui generis right has become in the UK legislation) will however give database operators valuable new rights. The definition of a database for these purposes is the same as in the copyright provisions, but there is no originality requirement: the mere fact that there has been a substantial investment in the database is sufficient.

The new right enables the database operator to control two activities:

  • Unauthorised extraction of material from the database, and
  • Unauthorised reutilisation of material from the database.

In British Horseracing Board and others v William Hill Organization Ltd. [2001] EWHC 517 (Patents) Laddie J had the first opportunity to consider the EC directive. He found that it seemed to work much as the legal profession had expected. The Court of Appeal [2001] EWCA Civ 1268[3] seemed to agree with him, but thought it necessary to obtain confirmation from the Court of Justice of the European Communities in Luxembourg. On 9 November, the Community Court handed down its judgment (along with judgments in two further cases, involving football fixtures: Cases C-46/02, C-203/02, C-338/02 and C-444/02, Fixtures Marketing v Oy Veikkaus AB, British Horseracing Board v William Hill Organisation Ltd, Fixtures Marketing Ltd v Svenska Spel AB and Fixtures Marketing v Organismos Prognostikon Agonon Podosfairou), holding (in effect) that Laddie J was miles out.[4]

The Community Court held that "database" means any collection of works, data or other materials, separable from one another without the value of their contents being affected, which includes a method or system of some sort for the retrieval of each of its constituent parts. This does more than put a gloss on the wording of the directive: rather, it adds a couple of new elements altogether. The directive does not protect all databases, of course: there is a threshold to be crossed, as in copyright law a work must be original. In the database directive there has to be a substantial investment in the obtaining, verification or presentation of the contents of the database, a test that seemed pretty undemanding. That, it now seems, is where we went wrong.

The Community Court tells us that "investment" in this context refers to the resources used to seek out materials and collect them in the database. It does not mean creating the materials that make up the database. That proposition is still fairly uncontroversial, but in the football fixtures and horseracing cases4 the database operator also created the stuff with which the database was populated. Identifying the product of the investment was therefore less easy than it might have been, and harder still would be demonstrating to the court that there was a substantial investment in obtaining, verifying and presenting the materials independent of the resources employed in creating the materials.

The catch is that finding and collecting the data required no particular effort on the part of the football leagues or the BHB. Those activities were, in the football cases, part and parcel of the process of creating the data in the first place. Who organises the fixtures? The same people as are now claiming to have invested in putting the information into a database. But the same exercise cannot, in the court's view, be protected as a database: the database is merely the receptacle for the information created in the course of the league's more fundamental activity.

Moreover, if the league created the fixture list in the first place, no effort needs to go into verifying it, neither is there any substantial investment in the presentation of the information, which again is little more than a function of the original activity of determining who will play whom, when and where.

In the horseracing case, things were different. There was no doubt that there had been a substantial investment in obtaining and verifying the information, and in presenting it. The information was generated by others - racecourse owners, horse owners, and other participants in the industry - and the BHB clearly does expend effort in assembling all this information in a database, checking it and presenting it to users. The question here is whether William Hill's use of the material in the database was an infringement.

Even though there was enough investment to ensure that the database was protected, that investment had to be directed to the right result. The Court held that when the BHB decided the date, time, place and name of a race and the horses running in it, it was creating content for the database rather than investing in obtaining, verifying or presenting the information. When details of an entry (entrant, horse, owner, jockey) are verified at the time the entry is made, that too goes to creating the data rather than verifying anything in the database. As the sum of these materials was what William Hill were using, they were not infringing rights in the database.

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