Database right

In 1996, a European directive (96/9/EC) introduced a new
intellectual property right, the database right. To attract that right,
the database must have the following: constitute a collection of
independent materials, and be systematically or methodically arranged
and individually accessible by electronic or other means.

Historically, databases have been protected in the UK by copyright.

we have a dual system. Some databases will qualify for copyright
protection, provided that there has been “intellectual creation” in the
selection and arrangement of the content. When the data is managed in
an “unsophisticated manner”, the right comes into play. To qualify for
protection, there must have been “substantial investment” in the
obtaining, verification or presentation of the database contents. The
database right lasts for 15 years, as opposed to the far more generous
term of copyright protection (life of author plus 70 years).

The scope of this relatively new right has been largely untested.

November 2004, the European Court of Justice delivered fair rulings
interpreting the right. One of these was in answer to a reference made
by the English Court of Appeal in the British Horseracing Board v
William Hill Organisation Limited case. The ECJ held that dates, times
and identities of teams/horses were “independent materials”. As fixture
lists involve methodical arranging and individual accessibility they
constitute databases. Whether the right protects such lists depends on
any “substantial investment” in the obtaining, verifying and/or
presenting of its contents. In assessing “substantial investment”, the
ECJ referred to the resources used to locate the constituent
independent materials; to collate, verify and present them.

on from the rulings, the Court of Appeal held in the BHB case on 13
July 2005 that the investment in the selection, for the purpose of
organising horse racing, of the horses admitted to run in the race
concerned related to the creation of the data.

What was being
created was a list of horses that the BHB has accepted as qualifying to
race – “the database contains unique information” in other words, the
content. Therefore the database right did not protect this investment.

a database right exists, to what extent can the owner of that right
control the extraction and/or reutilisation of all or a substantial
part of the content? The answer is clear when all the information on
the database has been taken. That’s an infringement. The answer is more
complicated when only a part has been taken. The key point is whether a
“substantial part” has been taken. To assess this, one has to consider
the quantity and quality. In the BHB case, the ECJ held that the
materials displayed on the William Hill website represented a small
proportion of the whole of the BHB database. In order to assess whether
taking those contents constituted taking a substantial part, one has to
look at the extent of the investment. Here the investment was in
respect of the creation of the materials.

There is a provision in
the legislation which states that a database owner can control the
repeated extraction and/or reutilisation of unsubstantial parts of the
contents so to conflict with a normal exploitation of the database or
unreasonably prejudice the legitimate interests of the database creator.

the BHB case, the ECJ thought that there was no possibility that,
through the cumulative effect of its taking, William Hill might
reconstitute the whole or a substantial part of the database. The
message from these rulings and the Court of Appeal decision is that the
purpose of the right is not to protect the creation of materials
capable of being collected subsequently in a database. Instead, it is a
right to promote and protect investment in data storage and processing

In circumstances such as those in the BHB case, the only
intellectual property right the database owner may attract is copyright
in the content, namely the data itself, provided that it’s the content

Even if it is the owner, small pieces of information, such
as the name of a horse or the title of a race, will not attract
copyright protection.

So what are the practical implications for
publishers who wish to reproduce parts of databases? Each case turns on
its own facts. Before taking the decision not to seek a licence from a
database right owner, it is essential for publishers to carry out a
thorough legal analysis.

This will involve considering what
investment the owner has made in creating the database. Does this
relate wholly to the creation of the contents? Or to the obtaining (as
opposed to creating), verification or presentation of the contents?
Even if the database right doesn’t protect the database, a publisher
must consider whether there would be an infringement of any other
intellectual property rights. Are you using another’s trademark? Are
the database contents copyright protected?

Lorna Caddy is a media and entertainment lawyer at Taylor Wessing

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