Database Right: is the tide finally turning?

In the 20 years since the Database Directive was enacted there have been relatively few cases asserting the sui generis database right (the Database Right) against a third party. However, a recent case, Technomed Limited and another v BlueCrest Health Screening Limited and another, indicates that the works covered by the sui generis database right might be broader than first thought.

What is the database right?

The Database Right was created by the Database Directive 96/9/EC.  The Database Right protects a database – defined as “a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means” – where there has been qualitatively and/or quantitatively a substantial investment in the “obtaining, verification or presentation of the contents” of the database. Thus, pure cost and effort can be enough for the database to be protected by this right.

How has the CJEU interpreted the Database Right?

Unfortunately, the economic value and impact of the new right was been limited by the interpretations given by the CJEU in early cases.

William Hill

William Hill was a reference from the English courts concerning William Hill’s use of the British Horseracing Board’s (BHB) information. BHB, a UK governing authority for the horse racing industry, managed a £4 million database which contained a large amount of racing-related information.

The CJEU held that database right did not subsist in BHB’s database, explaining that for database rights to subsist there must have been “investment in the obtaining of the contents“. Any investment in the creation of the data which made up the database was not protected.

Football fixtures

In three joined cases on this issue, the CJEU was asked to decide whether football fixture lists attract Database Right protection. The Court held that, “the resources deployed for the purpose of determining… the dates and times of and home and away teams playing in the various matches, represent… an investment in the creation of the fixture list“. The investment described is linked to the creation of the data contained in the database and therefore is not investment of the type – obtaining, verifying or presenting – that can be taken into account for the purpose of determining whether the Database Right subsists.

But in more recent decisions, the CJEU has not always struck down Database Right claims.

Where are the courts taking Database Right now?

Football Dataco v Sportradar

In this case, the database at issue contained data about live football matches. The defendants argued before the English courts that this database was akin to those in William Hill and Football Fixtures, since the investment made by Football Dataco was in the creation of the data. They argued that this data did not exist until it was recorded and so it was created when Football Dataco recorded it in its database. However, the Court held that the database right did subsist in Football Dataco’s database, since the data that was collected and recorded at a football match was not created by that person but merely recorded by them.

This more generous approach has now been taken a step further by the English court in its latest decision.

Technomed v Bluecrest

Technomed provides an electrocardiograph (ECG) reporting system for doctors, known as ECG Cloud. It is a screening service that flags up potential problems to be referred to, and investigated by, cardiologists, using a traffic light system where green indicates a normal result, and red indicates critical or urgent abnormalities.  The patient data is reviewed by a qualified cardiac physiologist who selects from a range of options from menus. The menus correspond to each ECG variable in a database. Technomed alleged infringement of its copyright and Database Right in this database.

Bluecrest, which had been using the ECG Cloud system, at a later date agreed to switch from Technomed to an alternative service provided by Express. Bluecrest sent various emails to Express, providing it with Technomed documents. One such document was a pdf document recording the Technomed Database, which Express used (at Bluecrest’s request) to create its own system.

The judge held that the Technomed Database, whether in spread sheet or pdf format, ties together a classification, an option and a traffic light. Individual classifications are “individually accessible” either by reading the pdf with the human eye or accessing the spread sheet electronically. He concluded that “the use to which the Database can be put (and indeed was put by the defendants) is no different to a telephone book (where accessing a name carries with it an address and phone number)”.  Therefore the Technomed database was a database within the statutory definition.

The judge agreed with Technomed that there had been substantial investment in the obtaining, verification and presentation of the contents of the database. This meant that Technomed did indeed have a Database Right in the database, which had been infringed.

An increasingly important right in the digital age

The Database Directive’s aim to “safeguard the position of makers of databases against misappropriation of the results of the financial and professional investment made in obtaining and collection the contents by protecting the whole or substantial parts of a database against certain acts by a user or competitor” can now be seen to be prophetic of the importance of data and databases in the digital age, 20 years after it was passed.

In the light of the Sportradar and Technomed decisions, EU businesses of all kinds that depend on data for their competitive advantage may have greater prospects of successfully relying on the Database Right to keep third parties from making unauthorised use of those assets.