UK: Database Right: Odds-On Favourite

Last Updated: 17 April 2001

Our October 1999 Short Lines article 'Data - The Elusive Asset' outlined the requirements for database right, the 'sui generis' right created by the 1996 EU Database Directive1 .

The British Horseracing Board Limited and others v William Hill Organization Limited2 is the first UK case to consider a contested claim of database right infringement. (Infringement was conceded in the 1999 case Mars UK Ltd v Teknowledge Ltd3 , the defendants relying instead (unsuccessfully) on a defence of the right to repair).

Background

The British Horseracing Board (BHB), (the governing body of the UK racing industry) maintains a detailed database of race fixture information. This database is frequently revised to maintain its accuracy, at an estimated annual cost of £4 million. BHB receives around £1 million a year in database licence fees from the racing industry and the media. Bookmakers access the information indirectly, from data feeds provided by BHB's licensees.

William Hill is a leading UK bookmaker, providing telephone and online betting services and running a large network of licensed betting offices. William Hill subscribes to the data feeds issued by BHB's licensees and uses this information throughout its betting operations. BHB alleged breach of database right by William Hill using this information for online betting services. Copyright infringement was not claimed.

In finding for BHB, Mr Justice Laddie discussed in detail each requirement for asserting database right infringement. As national courts are required to give precedence to European law4 , the Copyright and Rights in Databases Regulations5 were not considered.

Infringement

The steps for establishing database right infringement are:

  1. EEA ownership of a database;
  2. Subsistence of database right; and
  3. Unauthorised extraction or reutilisation of a substantial part of the database, or repeated and systematic extraction or reutilisation of insubstantial parts.

Database Ownership

The Directive defines a 'database' as 'a collection of independent works, data or other materials arranged systematically and methodically and individually accessible'. Mr Justice Laddie tells us this means any searchable collection of independent works.

For the purposes of database right, the owner is the person who substantially invests in obtaining, verifying or presenting its contents. In contrast to copyright, this may not necessarily be the author. They must, however, be an EEA member state national.

Subsisting Database Right

Database right subsists for 15 years following the year when the database is completed. A new term of protection arises on every substantial investment, regardless of whether changes are made (for example, when investment is made in verifying continuing accuracy).

Extraction And Reutilisation

'Extraction' is copying. 'Reutilisation' is making material available to the public. Database right is only infringed if these acts are committed either in relation to a substantial part of the database, or repeatedly and systematically in relation to insubstantial parts. Mr Justice Laddie's consideration of these issues is particularly significant.

We are told that extraction or reutilisation may occur indirectly. William Hill did not have direct access to BHB's database, only to the data feeds provided by BHB's licensees. Nonetheless, as the information originated from the BHB database it must have been extracted from it, and in posting the information online William Hill was reutilising it. William Hill was not licensed to post the information online.

That the relevant information formed a 'substantial' part of the BHB database was established by analysis not only of its qualitative and quantitative value to BHB, but also its relative value to William Hill, for whom it was key.

Had it not been determined that the information formed a substantial part of the database, William Hill's 'repeated and systematic' daily use of the BHB information would in any event have constituted infringement. That the information had been added to the BHB database at different times did not mean that it came from a number of databases. In the judgment of Mr Justice Laddie such an interpretation would create an unacceptable flaw in the Directive. It is the duration of database right that is renewed with substantial investment. No new database is created.

Summary Of The Key Points

  • Any searchable collection of independent works will qualify as a 'database'.
  • Database right can be infringed by indirect extraction or reutilisation. ·
  • Information is reutilised despite modification if it remains essentially the same information.
  • Alteration is not a prerequisite to obtaining a renewed database right. Substantial investment is the only relevant factor.
  • In contrast to database copyright, database right can protect the content of the database. The form of compilation is only relevant to determining the existence of the right, not what it protects.
  • The importance of the data to the user must be considered in assessing the 'substantiality' of the information extracted or reutilised.
  • Databases are dynamic. Amendments do not create new databases, although the duration of protection does depend on when relevant data initially formed part of the database.

What Does It Mean?

This case is of great significance to database owners and users, as it confirms that database right and copyright are distinct, and can be asserted in distinct circumstances.

Copyright may be seen as the more substantial right as it subsists for 70 years after the death of the right holder. Database right subsists for only 15 years after the year of investment. However, to assert copyright the Directive requires a database owner to establish intellectual creativity beyond mere labour, whereas database right exists to protect investment (which could conceivably comprise only labour). Investment, which is tangible, is generally easier to establish than creativity, which is not. It should also be remembered that database copyright protects only database structure, whereas database right appears to protect content as well. This is particularly significant, as the database owner may not hold content copyright.

As the two rights are distinct they can be asserted in the alternative, thereby in a sense 'doubling' the protection available to database owners. More importantly, the grounds for infringement appear entirely distinct.

Database right protects investment, whereas copyright protects creativity. BHB might also have successfully asserted copyright, but in enforcing database right the potential damage to BHB's investment became central to the issue of infringement. In contrast, potential losses are only relevant to copyright when determining a level of damages. It was key to the decision that in posting core BHB information online William Hill threatened BHB's licensing revenues, and therefore its investment.

Avoiding The Pitfalls

For database right holders investment is key. All input (financial and otherwise) in compiling and maintaining databases should be recorded. This case would have been resolved very differently if BHB had not been able to prove substantial investment. It is equally important to include an acknowledgement of the investment within the licence documentation, as this should prevent any subsequent suggestion to the contrary.

Database Users Take Note:

  1. Both database content and structure may attract copyright and database right, each of which may be infringed by unauthorised use and reproduction.
  2. Copyright and database right may be held by different persons, who may each individually seek to protect their rights.
  3. Using database content without proper compensation is particularly likely to constitute infringement. That the data has been obtained indirectly or been modified will not be considered relevant if the facts establish detriment to the database right holder.

Database users can reduce the risk of liability for infringement by obtaining adequate guarantees of authorisation from data suppliers. Had William Hill only acted as expressly authorised by its supplier, and been assured that these acts were permitted by BHB, then liability could have been passed back to the supplier.

Footnotes

1 96/9/EC

2 (unreported) 9 February 2001

3 [2000] FSR138

4 Case C-106/89 Marleasing [1990] ECR1 4134

5 SI1997/3032

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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