Database rights - the good, the bad and the ugly

Dear reader

I wrote an article earlier this year, about the future of the Database Directive, as a contribution to The Stationers Company's online digital project on 'Copyright in the Digital Age', soon to be published as a nice analogue book.

My conclusion was characteristically upbeat, mixed with some sympathy for the database right as the misundersood adolescent of the world of intellectual property rights. I wrote "In my view, the database right has often been misunderstood.  Databases are ubiquitous in the digital world and the database right has an important role to play in protecting substantial investment in databases."

Well, I'm pretty confident that in a world of metadata and data aggregation, rights in information ARE important. But in the light of a recent case mentioned below, In retrospect, I may have backed the wrong horse. Copyright in databases, rather than the database right, may be the one to watch.

But first, a quick refresher. You may recall that the EU Directive on the legal protection of databases of 11 March 1996 (the Database Directive) did two things. First, it introduced the new database right to supposedly protect the database producer's investment in databases. Second, it raised the bar for copyright protection in databases above the UK's 'sweat of the brow' test to a Euro-authors' right style test of 'author's own intellectual creation in the selection and arrangement of the contents of the database'. You can read another article of mine on the Database Directive here. But, in essence, we all thought that database right was the one to protect investment in databases, with copyright in databases having an uncertain future.

But the Database right was dealt a blow by the 2004 decisions of the European Court of Justice in the Fixtures Marketing cases and the William Hill case which essentially excluded from database right protection data which was newly created by the database owner, as distinct from data gathered from pre-existing sources.

Fast forward to April of this year, and we have the UK decision in Football Dataco Ltd v. Britten Pools. which looked at the rights in English and Scottish football league fixtures lists. Essentially, the Court decided that such lists ARE protected as copyright works even though they are not protected by database right. Whilst mere 'sweat of the brow' compilations (e.g. and A-Z list of Acts of Parliament) may be insufficient, copyright protection will apply if the author/compiler of the database has exercised 'judgment, taste or discretion' and that work is quantitatively sufficient to attract copyright protection.

In this case, the Court decided that test for copyright protection was satisfied by virtue of the choices of dates on which the fixtures were to be played, the identity of the teams to play in each match, the allocation of matches to match dates etc.

So the practical message is to make sure that, as a database producer, you have secured ownership of the copyright in your databases.

In my next post, I will discuss a recent case that has an important message for directory producers (online and in print) as regards the use of 'seed names'.

Have a good week

Laurie Kaye

Comments

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The catalogue right was designed to defend considerable asset and does not prevent the irregular taking of insubstantial parts of a database. It does not lock up data as some critics uphold and, in my view, strikes a suitable balance.

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Database and data management are at a turning point. Among the drivers are changes in architecture like cloud computing and the needs to deal with large amounts of data.