Database Rights
Whilst not a betting woman I’ll wager that the outcome of a ruling from the European Court of Justice, on a dispute last year between the British Horseracing Board (BHB) and William Hill (WH), will be relevant to your business! That’s because your business, like most, is likely to use, or rely in some way on databases.
Facts of the Case
BHB are responsible for compiling or publishing the annual fixture list of races in the British Racing industry. At great time and expense, they maintained a computerised collection of information including details of races that day, form, trainers, jockeys and owners. BHB invested a considerable amount of time and money in establishing and maintaining the database and in collecting and verifying the information included in it. Information from the database was distributed commercially on behalf of BHB through third parties. Under licence from one of these third parties WH obtained information from BHB’s database for use in its betting shops. WH subsequently started using the information when offering betting via the Internet. BHB claimed that in doing so, WH infringed its database right.
Background
The database right was introduced under the Copyright and Rights in Databases Regulations 1997 (the Regulations implement into UK law the EU Database Directive). Under the Regulations the database right arises if there has been a substantial investment in obtaining, verifying or presenting the content of a database. It lasts for 15 years. A database right will be infringed if there is an extraction or utilisation of all or a substantial part of the contents of a database.
Arguments
BHB argued that its database right had been infringed by the extraction or re-utilisation of a substantial part of the database by WH or alternatively by the repeated and systematic extraction or re-utilisation by WH of insubstantial parts of the contents of the database. WH denied any infringement. They argued that what was protected by the database right was the form of the database itself. WH submitted that they had merely used information in the database, which was not individually protected.
Outcome
At first instance, infringement was found on both counts. This decision, earlier last year, was appealed and as a result of the appeal the Court of Appeal suggested that certain questions regarding the interpretation of the Directive, from which the Regulations derived, should be referred to the European Court of Justice. It was suggested that the ECJ should be asked to determine:
- Whether "database-ness" is an essential quality for any "part of the contents of the database"?
- Whether information in the form of a list of runners created at the same time as they are published can be a relevant part of the contents of the database?
- Does "extraction" or "re-utilisation" involve having access to the database or a copy of it?
- Does "extraction" or "re-utilisation" extend to a person who is a subscriber to a service provided by a licensee of the database right owner and who thereby receives part of the contents of the database and who makes available that part of those contents to the public in the course of its business?
- Where there is a constantly updated database, whether there was a new database separate from the previous database whenever any substantial change has occurred?
Until the ECJ have ruled on the issue (the decision could take upwards of 18 months), the scope of protection afforded by the database right remains unclear. What is clear, is that the ECJ’s ruling on these questions will be of relevance to all businesses using databases, not just the runners and riders of the horse racing industry.
This article was written by Lisa Sinclair and Paula McBride, who work for
Brechin Tindal Oatts.
It is reproduced here with permission.
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Article created in May 2003 and may not have been updated at time of reading.