November 2004
Post- gallop to the ECJ, the BHB ponders its database right back in the horse box
The ECJ has finally ruled in the case between the British Horseracing Board (BHB) and William Hill, finding no infringement by William Hill of BHB's database right, a right created by an EU directive and implemented in the UK by the Database Regulations 1997.
It was when William Hill offered a betting service via the internet, that the High Court held that the company had infringed BHB's database right, by extracting and re-utilising a substantial part of the database. BHB's database, which is subscribed to by newspapers and bookmakers, records up-to-date information on fixtures, trainers, horses, owners, jockeys etc. The owner of a protectable database has the right to prevent the unauthorised "extraction or re-utilisation" of this data and the fact that the contents of a database were made accessible to the public by its maker (or with his consent), does not affect this right.
William Hill appealed to the Court of Appeal and the case was referred to the ECJ for clarification on various questions regarding the legislation. The ECJ confirmed that data copied to another medium and made available to the public is contrary to the Directive but that this depended on the ever-probing question of what amounts to a substantial part. It was held that a substantial part would be "evaluated both qualitatively and quantitatively" and must be "assessed in relation to the total volume of the contents of the database". It also added that an insubstantial part could be substantial, if it had been systematically repeated, so as to have a cumulative effect and which seriously prejudices the investment made by the database owner. The ECJ held that the parts William Hill had extracted/re-utilised, could not constitute a substantial taking of the database and neither was there evidence of serious prejudice to BHB's investment, as this was held to be money spent on the creation of the actual data and not on the creation of a database.
BRIFFA Comment:
Companies using data compiled by and belonging to third parties and the creators of such databases alike should note the outcome of the above case. Clearly you should not infringe upon another's database right and records should be kept to substantiate a database owner's claim to having invested time, effort and expense in the assembly of a database. This latter point is important because for the purposes of the database right, the owner is the person who substantially invests in obtaining, verifying and presenting the contents, rather than the creation of the content itself. In contrast to copyright, this may not necessarily be the author. Essentially there are three ways a database may be afforded protection in the UK. Firstly, the contents of a database right could be protected as a literary work if it constituted the author's "own intellectual creation". Secondly, there is the database right which was discussed in the above case. This operates where it is perceived that the normal copyright tests of "originality" and of "own intellectual creation" would not succeed. Thirdly, there exists the non-database literary copyright, if it is a "work…which is written… or a table or compilation", provided the author can show that it is not a database. Database owners may attempt to invoke one of the other two ways in the future. For the BHB, any potential revenue from the commercial licensing of data may well be curtailed somewhat and similar issues are being experienced in the footballing world following an ECJ ruling in the Fixtures Marketing Ltd case.