Database Rights

Jane Lambert
27 May 2010

This is a new species of intellectual property which came into being on 1 Jan 1998. Database right protects investment in obtaining, verifying and presenting the contents of a database as distinct from the intellectual effort in creating it. Such intellectual effort continues to be protected by copyright. Thus, database right subsists independently, of but complementary to, copyright overlapping also with the law of confidence.

Source of Law
Database right springs from The Copyright and Rights in Databases Regulations 1997 (SI 1997 No. 3032).  These appear in a useful compilation of copyright and related legislation by the Intellectual Property Office.    implement Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (“The Database Directive”). That directive requires member states to clarify their copyright laws in relation to databases as well as to introduce a new database right.

Definition of “Database”
A database is defined by reg. 6 of the Regulations as a collection of independent works, data or other materials which are arranged in a systematic or methodical way, and are individually accessible by electronic or other means. Database right can subsist in a database regardless of whether copyright also subsists. Unlike the law of confidence, there is no requirement that the database or its contents should have any commercial or other value. In C-444/02 Fixtures Marketing Limited v Organismos Prognostikon Agonon Pododfairou AE . [2004] BAILII C-444/02 the European Court of Justice held that the term “database” refers to “any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.” Accordingly, a fixture list for a football league such as that at issue in the case in the main proceedings constitutes a database within the meaning of that regulation.

Database, like copyright, subsists automatically as soon as the database is made. There are no registration or other formalities. However, it is important to note that the qualification for database right is much narrower than for copyright. Nationality of, or residence, incorporation or having a principal basis in, an EEA state is required.

In C-203/02 British Horseracing Board and Others v William Hill Organization Ltd.[2004] ECR the European Court held that database right is intended to protect either investment in the resources used to seek out existing independent materials and collect them in the database or in those used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. It does not protect either the resources used for the creation of materials which make up the contents of a database or those used for verification during the stage of creation of materials which are subsequently collected in a database do not fall within that definition. On the specific issue that had been referred to the Court, namely whether resources used to draw up a list of horses in a race and to carry out checks in that connection constituted investment in obtaining and verification of the contents of a database, the Court held that it did not.

The Court reached similar conclusions in C-388/02 Fixtures Marketing Ltd v OY Veikkaus Ab {2004] BAILII C203/02, C-46/02 (a corresponding reference from Finland between the same parties) and Organismos Prognostikon Agonon Pododfairou. In the context of drawing up a fixture list for the purpose of organizing football league fixtures, which was the issue referred to the Court in that case, it held that the words “investment in … the obtaining … of the contents of a database” do not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

Implementation in the UK
In the British Horseracing case, the European Court held that the words “extraction” and “re-utilisation” must be interpreted as referring to any unauthorized act of appropriation and distribution to the public of the whole or a part of the contents of a database and that they do not imply direct access to the database concerned. The fact that the contents of a database were made accessible to the public by its maker or with his consent does not affect the right of the maker to prevent acts of extraction and/or re-utilisation of the whole or a substantial part of the contents of a database. The expression ‘substantial part, evaluated … quantitatively, of the contents of [a] database’ refers to the volume of data extracted from the database and/or re-utilised and must be assessed in relation to the total volume of the contents of the database. The expression ‘substantial part, evaluated qualitatively … of the contents of [a] database’ refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. Any part which does not fulfil the definition of a substantial part, evaluated both quantitatively and qualitatively, falls within the definition of an insubstantial part of the contents of a database. Accordingly, the prohibition laid down by the legislation refers to unauthorized acts of extraction or re-utilization the cumulative effect of which is to reconstitute and/or make available to the public, without the authorization of the maker of the database, the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment by the maker.

Database right is enforced by civil action in the Chancery Division or a Chancery County Court.    The remedies are the same as for copyright infringement.