UK: Court Judgement Reduces Protection for Databases

By Conan Chitham and Dan Morrison

A recent decision of the European Court of Justice (ECJ) has drastically narrowed the scope of legal protection for databases in the UK and throughout Europe. This could increase the rights that third parties have to access the contents of your databases and may mean that information stored in them is no longer protected at all.

Before the ruling it was considered that the very action of inputting information into a database would have been enough to secure its protection under the Database Right, created following a European Directive in 1990s.

It was believed to be an infringement to extract or utilise the whole or a substantial part of a database, or to undertake repeated, systematic extraction or utilisation of insubstantial parts of a database, where it conflicted with the interests of the owner in any way.

Under the Database Right a database is defined as a 'collection of independent works, data or other materials arranged in a systematic way and individually accessible by electronic or other means'. Protection is provided if 'there has been a substantial investment in obtaining verification or presentation of the contents'.

In November, the (ECJ) gave its judgement and interpretation of the Database Right in four cases referred to it and conflicted not only with previous interpretations, but also with the opinion of the Advocate General (one of the cases involved the British Horseracing Board and William Hill Bookmakers, the three other cases were football fixture cases from Sweden, Finland and Greece).

Their interpretation is as follows:

• The protection given by the Database Right is for the storage and collection under a qualifying filing system of information and does not extend to the creation of materials capable of being subsequently collected in a database.

• The necessary investment in a database is limited to that which relates to the seeking out of independent materials or data and the collection of them in a database and not to the resources used for the creation of the materials or data.

• Investment in the verification of the content of the database refers only to the investment in the verification at the time of creating the database.

Even if there is a database that benefits from Database Right, the ECJ's judgement narrows the scope of what constitutes infringement. For there to be infringement by extraction or utilisation there must be extraction or utilisation of a substantial part of the database. This substantial part is determined both qualitively and quantitively.

• The qualitative test looks at the scale of the investment in obtaining, verifying or presenting the data and the intrinsic value of the material being extracted or re-used. If there is no input into or verification of the data beyond the resources used for its original creation, the qualitive test of infringement will be much harder to pass.
• The quantitive test relates to the quantity of data taken. Where only a small proportion of the whole of the database is being used, even if this is the same one or more pieces of information from every record, then this may not be sufficient to amount to infringement on quantitive grounds.
• Repeated extraction or utilisation of insubstantial parts. If the parts of the data extracted are not substantial, they are by definition insubstantial. However, taking insubstantial parts, even repeatedly, will not infringe unless they seriously prejudice the owners investment in the database. This will probably not be satisfied unless the repeated taking of insubstantial parts constitutes making available to the public the whole or a substantial part of the content of the database.
• Finally, the ECJ found that there were no ownership rights over the data as such (i.e. the content) but only in the collection, verification and presentation of these contents.

These definitions have the effect of dramatically reducing the scope of database protection under the Database Right. As a result, a database may not have protection if the information that it contains was collected independently of the creation of a database. To receive protection under the law, the owner of database who is also the creator of the materials collected will have to show distinct investment in the database, this will be harder where the verification of data is essentially carried out at the time of creation.

It is essential to review your databases to see what protection they have under the new interpretation. Particular areas to focus on are how the data has been created, collected and verified. You may need to take steps to physically secure or restrict access to the database and strengthen confidentiality undertakings with those allowed access to it. In some cases, depending on the nature of the database, the content and the database structure may benefit from copyright protection.