THE LEGAL PROTECTION OF DATABASES IN EUROPE
What’s the P
roblem?
Even before we all set foot on the „information superhighway‟ in the early 1990s, the European Commission had
recognised the importance of protecting investment made by database producers. This led to the 1996 Directive
http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html. The Directive was implemented into UK law in 1998 http://www.opsi.gov.uk/si/si1997/1973032.html.
The idea underlying the Directive seemed clear enough, at least conceptually. It introduced a „two tier‟ level of
protection for databases. Copyright protects the intellectual creativity in database structure. The Directive thenintroduced an entirely new right
–
the database right (also known as the „sui generis‟ right)
- to protect theinvestment made in database production. To be precise, it applies to investment in obtaining, verifying orpresenting the contents of a database.
Now fast forward nearly twenty years to the judgments of the European Court of Justice (“ECJ”) in the William
Hill and Fixtures Marketing cases in November 2004 http://curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79958890C19020203&doc=T&ouvert=T&seance=ARRET&where=().As we willsee, the ECJ judgments have created a significant gap in database protection and left information lawyers
scratching their heads about what exactly is protected by the database right. The ECJ‟s judgments were followed
by the UK Court of Appeal in July this year when it finally decided the case brought by William Hill against the
British Horseracing Board (“BHB”) for infringement of their database right in their database
Here’s the problem
The ECJ decided that database materials which the database maker creates, rather than obtains from a thirdparty source, are not protected. So all of the investment made by the BHB (circa £4m p.a.) and by the Football Association in creating their official fixture lists is not protected. At the time when the Directive was going through its various stages, everyone thought that as long assubstantial investment was made in putting the database and its contents together, the maker would beprotected against its unauthorised use. However, we now find that obtaining data is protected but creatingdatabase content is not. Of course, few databases consist wholly of data obtained from third parties. Publishersand information providers need to add value to their database products by creating original data. Is this nowunprotected? If it is, then the licensing income generated by database producers may have lost its legalunderpinning.So here we are, nearly ten years after the introduction of database right, with a very large question mark aboutprotection for added value data. In the remainder of this article, we will look at what the ECJ decided, the impactof these legal decisions and what publishers should do to protect their investment in this changed legallandscape. But first, we will start with a very quick refresher about the Directive.
A brief refresher
Before the Directive was introduced, there was a mixed bag of legal protection for databases. In the UK andNetherlands, databases were protected by literary copyright as tables or compilations. But in other EuropeanUnion countries, such as Germany, they were often unprotected because they did not meet the higher threshold
of author‟s intellectual cr
eativity that those countries required for copyright protection.
What is a database?
The Directive gave a very wide definition of „databases‟. A „database‟ is “a collection of independent works, data
or other materials arranged in a systematic or methodical way and individually accessible by electronic or other
Page 22005
means.” So web sites, online databases, collections on CD
-ROMs and print directories are all capable of beingdatabases. However, just because they are capable of falling within the definition does not mean that theyqualify for protection.
Copyright and database right
Under the Directive, copyright protection applies to databases “which, by reason of the selection or arrangementof their contents, constitute the author‟s own intellectual creation.”
However, merely extracting data from adatabase is unlikely to infringe copyright. So in the recent ECJ cases, the issue of database copyright was noteven considered.
In contrast, database right is a producer‟s right. It applies where there is a substant
ial investment
–
in time,money and human resources
–
in obtaining, verifying or presenting the contents of a database. It is interesting
to note that there is no reference to „making‟ or „creating‟ database contents. This reflects a „pre
-
Internet‟ vision
of a database as a passive electronic storehouse of pre-existing data and of the database producer as essentiallya mere gatherer of that data.If the maker of the database has made the required substantial investment, then any unauthorised copying ordistribution
–
„extraction‟ or „re
-
utilisation‟ in the Directive‟s language
- of the whole or a substantial part of that
database will infringe the right. The right can be infringed if „small but regular helpings‟ are taken. So the
Directive provides that repeated and systematic extraction or re-use of small ("insubstantial") parts of adatabase's contents can, cumulatively, amount to infringement of the sui generis right where this conflicts withthe maker's legitimate interests.The database right lasts for fifteen years but is renewable if there are substantial changes to the database in
question during the fifteen year period. The first owner of the right is the person who is the „maker‟ of thedatabase. However, only „makers‟ who are nationals or habitual r
esidents in a Member State may qualify forprotection. So a US producer of a database cannot qualify for database right protection.
Separate protection for copyright works in a database
It is worth remembering that copyright and database right protection under the Directive are quite separate fromany copyright protection in any materials contained in the database. For example, the musical works in an onlinemusic service and research articles within an online journal will have separate copyright protection, as well aspotentially benefiting from any copyright and database right in the database in which they are stored.
What the ECJ decided
The ECJ decisions are not good news for database producers.The ECJ ruled on four cases referred to it by EU national courts. Three cases involved Fixtures Marketing which,on behalf of the UK football leagues, licenses the fixture lists outside the UK. These cases concerned the use of football fixtures' data for pools betting in Finland, Sweden and Greece. The fourth was a referral by the UK Courts of the BHB v. William Hill case. This involved the use of information from the BHB database on the WilliamHill internet site for online betting. In all cases, the database owner alleged infringement of its sui generis right inits database by the unauthorised use of its data.
The common factor in all four cases was the ECJ's ruling that the “investment in the obtaining, verification orpresentation of the contents” of the database refers to “the resources used to seek out exist
ing independentmaterials and collect them into the database and not to the resources used for the creation of such independent
materials”.
Page 32005Put simply, the ECJ decided that if a database is a by-product of the database maker's principal activity and thatthe investment goes into that activity and not into the gathering together of pre-existing materials, then no suigeneris protection is available! So in BHB's case, the ECJ decided that its investment went into the creation of thelists for racing, checking the identity of the person making the entry for the race and other information about therace and its entrants. All of this was part of its principal activity of organising horseracing and took place beforethe database was created. A similar line of reasoning appears in the three cases involving Fixtures Marketing.There is further bad news for database owners in the BHB v. William Hill judgment. BHB argued that althoughonly tiny amounts of the data in the BHB database were used each day by William Hill, it cumulatively amounted
to infringement (see comments above regarding „small but regular helpings‟). But the ECJ decided on the facts
that there was no possibility that, cumulatively, William Hill could reconstitute and make available to the publicthe whole or a substantial part of the contents of the BHB database. William Hill did not therefore prejudiceBHB's investment in the creation of the database.
The impact of these decisions
For certain types of databases, there can be little doubt that the ECJ decisions significantly undermine the scopeof protection. Those are databases where the data is unique to the database producer and where the databaseproducer is the sole source
–
like fixture lists.
When the Court of Appeal considered the ECJ‟s decis
ion in the BHB v. William Hill case, it said that in contrast to
a “mere database of existing materials…if one asks whether the BHB published database is one consisting of
existing independent materials, the answer is no. The database contains unique information
–
the official list of
riders and runners.”
So at one end of the spectrum, databases consisting of this type of unique information are unlikely to qualify for
database protection if Member States‟ courts follow the ECJ decisions in a similar way to
the UK Court of Appeal.
At the other end of the „protection spectrum‟, databases which consist entirely or substantially of data obtained
from third parties will be protected by database right.
Third party and created data
The really difficult area is databases consisting of a mix of third party data and data which is created by thedatabase producer
–
the „added value‟ data. For these „hybrid‟ databases, the position may not be quite as bad as
it seems. In the BHB v. William Hill case, the database on whi
ch the ECJ focused was the „official list‟ of runners
and riders. It was therefore a database which consisted wholly of material which was created and compiled byBHB.However, if a database consists of a mixture of third party data and created data
–
it should be much easier forthe database producer to show that the database qualifies for database right protection. This is because thedatabase will have consisted of investment in obtaining third party data as well as investment in creating data. Aslong
as there has been „substantial‟ investment in that obtained data, including any investment in verifying the
accuracy of the data and/or in its presentation within the database, the qualification criteria will be met.
So it follows that if a mixture of „obtained‟ and „created‟ data is taken without authority, the database owner can
argue that the database right has been infringed because, at the very least, some of its investment in thedatabase
–
the „obtained‟ data –
is protected under the database right.
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The Legal Protection of Databases in Europe :: Laurence Kaye
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