Opinion of the Advocate-General of the European Court of Justice ('ECJ') (Case C-203/02)
On 8 June 2004 the A-G gave her opinion on 4 cases referred to the ECJ for interpretation of the provisions of Directive 96/9/EC on the legal protection of databases. One of the cases was the decision of the High Court in British Horse Racing Board v William Hill (referred to the ECJ by the Court of Appeal).
Recap on database right
The Directive was implemented into UK law by the Copyright and Rights in Databases Regulations 1997 ('DRegs').
- The DRegs created an entirely new right (called "database right") in respect of a database where there has been "substantial investment in obtaining, verifying or presenting the contents of the database"
- The maker of the database (i.e. the person who invests) is the owner of the database right. Where the database is made by an employee in the course of employment the employer is regarded as the maker subject to any agreement to the contrary
- A person infringes database right in a database if they, without the consent of the owner extractor re-utilise all or a substantial part of the database
- The repeated and systematic extraction or re-utilisation of insubstantial amounts may infringe
- The term of database protection is 15 years from the end of the year in which the database was made (or first made available to the public)
A-G's Interpretation of the Directive
In assessing whether there is an infringement:
- the only activities capable of infringing are 'extraction' and 're-utilisation'
- the purpose for which the maker created the database is irrelevant
- similarly, the intention of the user is not relevant; commercial use is not a decisive factor
- 'a substantial part of the contents of the database' includes works, data or other material derived from the database but which do not have the same systematic or methodical arrangement and individual accessibility as the original database
- the fact that the contents of the database are otherwise publicly available, does not have any bearing on the protection of the database
- Unlike 'extraction', 're-utilisation 'includes indirect means of obtaining the contents of the database. Therefore a person may re-utilise the contents of a database without having direct access to the database from which the contents are derived (or realising they have done so)
'Obtaining' does not include the mere production of data by the maker, but if the collection and screening of the data takes place at the same time as the data is generated the database can qualify for protection. It is not, therefore, a requirement that the data must be obtained from a source separate from the maker
'Verifying' applies to data that already form the contents of the database; it is primarily a matter of monitoring the contents for completeness and accuracy
'Substantial' is defined in the DRegs in terms of quality or quantity or a combination of both. There is, however, no minimum in terms of quantity. The investment made by the maker will always have to be taken into consideration in the assessment of whether a substantial part has been taken. The demarcation of what is 'substantial' is for the Court to decide in each individual case
'Extraction' is defined as the temporary or permanent transfer of the contents to another medium by any means and in any form e.g. printing out data would amount to extraction
'Re-utilisation' is defined as making the contents of the database available to the public by any means. Some examples are provided in the Directive including distributing copies, renting or making available online
'Repeated and systematic' are cumulative requirements. An activity is repeated and systematic when it is carried out at regular intervals, for example weekly or monthly
Exceptions to database right for teaching and research
The DRegs provide that database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if:
- that part is extracted by a person who is a lawful user of the database
- it is extracted for the purpose of illustration for teaching or research and not for any commercial purpose and
- the source of the database is indicated
This opinion provides useful guidance, subject to the authoritative interpretation contained in the decision of the ECJ which is expected in the next few months. This opinion has strengthened the position of the maker of the database, which will support an expanding market in the production and licensing of databases.
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.