Databases

Neville Cordell and Scott Singer of Denton Wilde Sapte consider the rights and obligations that relate to database ownership.

On 29 April 2004, the European Court of Justice (ECJ) ruled that the refusal by an undertaking in a dominant position to grant a licence for copyright will only constitute an abuse of a dominant position if it prevents the emergence of a new product or service for which there is a potential demand, is without objective justification and is capable of eliminating all competition on the relevant market.

The Advocate General of the European Court of Justice (ECJ) has delivered opinions in four parallel sets of proceedings relating to databases containing details of football and horseracing fixtures. The opinions set out her views on the meaning of the various provisions relating to the sui generis database right established under the 1996 EC Database Directive, which provides limited protection for databases which do not meet the stringent criteria for copyright protection but which nevertheless involve substantial investment.

The Advocate General of the European Court of Justice has delivered opinions setting out her views on the sui generis database right established under the Database Directive.

The ECJ has severely restricted the scope of the sui generis database right introduced by the EC Database Directive (96/9/EC) in a judgment relating to the dispute between the British Horseracing Board and William Hill over the use of the Board's horseracing fixture lists, and three parallel judgments concerning the use of UK football fixture lists by companies in Greece, Finland and Sweden.

The Patent Office has published an unofficial consolidated text of UK legislation on copyright and related rights (including rights in performances, publication right and database right), which incorporates amendments made up to 31 December 2003. The text includes amendments made to the Copyright, Designs and Patents Act 1988 by means of secondary legislation in order to implement EC directives in the field. Source: Patent Office notice, 11 March 2005.

The High Court has rejected a number of applications made by the bookmakers, Victor Chandler (International) Ltd, in proceedings brought against it by the British Horseracing Board for non-payment of fees under an agreement for the use of data compiled by the Board.

Following the ECJ's ruling in the British Horseracing Board v William Hill case, the Court of Appeal has allowed William Hill's appeal against the High Court's finding that it had infringed the British Horseracing Board's database right.

A consideration of the impact of the Court of Appeal judgment in British Horseracing Board v William Hill on database owners and users.

The High Court has upheld a claim by Attheraces Limited that the British Horseracing Board has abused its dominant position in the market for the supply of UK pre-race data, contrary to Chapter II of the Competition Act 1998 and Article 82 of the EC Treaty.

The Information Commissioner's Office has issued guidance advising organisations on how to comply with the Data Protection Act 1998 when buying and selling customer databases.

The Law Society has published a report commenting on the European Commission's proposed directive on criminal penalties for intellectual property (IP) offences, which was published in April 2006. The report raises concerns about the legal basis for the proposed directive, which followed the ECJ's ruling in Case C-176/03 about the competence of the EC to adopt criminal measures (see Legal update, European Commission adopts proposal for directive on criminal penalties for IPR offences), and about the extension of the criminal law to all IP rights, particularly patents.Source: Law Society, Policy on proposed changes in the law, 1 September 2006.

The European Commission has published a Communication on the digital publishing of scientific information, which examines how access to scientific information (both in the form of publications and research data) can be improved, and how digital scientific information can be preserved. The Communication considers the current position in Europe, including "open-access" publishing, and identifies the legal and other issues involved in any future policy initiatives.

The UK Intellectual Property Office (IPO) has called for comments on the European Parliament's report on the proposed Directive to harmonise criminal penalties for intellectual property offences (see Legal update, European Parliament votes on Directive on criminal penalties for IPR offences). The IPO has flagged a number of issues arising from the Parliament's report, including the European Commission's competence to harmonise criminal sanctions and the scope of the proposed Directive, particularly in the light of the Parliament's recommendation that patents be excluded. The IPO has requested feedback by the end of May 2007, in advance of the next round of European Council discussions on the Directive which are scheduled for June 2007 (or later in the year). Source: UK Intellectual Property Office policy notice, 21 May 2007.

The first in a series of articles on rights in digital content outlines the key rights and the commercial context in which they exist.

The High Court has held that ex-employees who copied and retained various documents belonging to their ex-employer, such as customer contact details and sales figures, had not acted in breach of confidence, because the information was available in the public domain or their gathered skills and expertise, so that it was not confidential so as to prevent them from using it after the termination of their employment contracts. However, Peter Smith J held, among other things, that the ex-employees had infringed their ex-employer's database right by copying various customer sales figures and electronic files from its computer system to the computer system of a competing company set up by the ex-employees. The case illustrates the potential utility of claims for database right infringement where ex-employees have copied and retained information without authorisation, in particular where such information may not be protected by confidentiality. Case: Crowson Fabrics Ltd v Rider and others, 20 December 2007.

An update on the ECJ's decision in Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg, 9 October 2008.

The European Court of Justice has considered what constitutes an extraction of database contents under the Database Directive.

An overview of some of the key legal developments in the field of IP, IT and communications law during 2008, and an outline of some of the main expected developments in 2009.

An update on the ECJ's decision in Apis-Hristovich EOOD v Lakorda AD, 5 March 2009 in which it considered various questions regarding the construction of Article 7 of the Database Directive (96/9/EC).

An exploration of the legal issues which often underlie trade secrets litigation and the practical steps that employers can take to help safeguard their confidential information.

An update on First Conferences Services Limited & another v Richard Bracchi & another [2009] EWHC 2176 (Ch), 26 August 2009, in which the High Court upheld a claim for misuse of confidential information, breach of database right and passing off against the claimant's ex-employee.

An overview of some of the key legal developments in the field of IP, IT and communications law during 2009, and an outline of some of the main expected developments in 2010.

An update on the High Court's decision in Football Dataco Ltd and others v Brittens Pools Ltd and others [2010] EWHC 841 (Ch), 23 April 2010, in which it ruled on a preliminary issue that football fixtures lists were protected by database copyright under section 3A of the Copyright, Designs and Patents Act 1988. However, they were not protected by the sui generis right in the Database Directive (96/9/EC), known as the "database right" in the implementing regulations (Copyright and Rights in Databases Regulations 1997 (SI 1997/3032)). (Free access.)

The High Court has held that football fixture lists were protected by database copyright, but not the sui generis right provided for in the Database Directive (96/9/EC).

A legal update on the adoption by the European Commission of the Marine Knowledge 2020 proposal.

A PLC Commercial "Legal FAQs" article about the pitfalls of buying databases of e-mail addresses and using them for marketing.

The Court of Appeal has referred to the ECJ questions on the interpretation of Article 3 of the Database Directive (96/9/EC) in relation to football fixture lists. (Football Dataco Ltd and others v YAHOO! UK Ltd and others [2010] EWCA Civ 1380, 9 December 2010.)

An article discussing the significance of data in various industry sectors and examining legal rights in data.

The Court of Appeal has referred a question to the European Court of Justice on the meaning of “extraction” and “re-utilisation” in the Database Directive (96/9/EC) where the defendants’ servers were based outside the UK.

The Patents County Court (Financial Limits) (No 2) Order 2011 (SI 2011/2222), which introduces a £500,000 limit on the value of intellectual property claims heard in Patents County Court, other than those concerning patents and designs, came into force on 1 October 2011.

A European Commission Recommendation of 27 October 2011 on the digitisation and online accessibility of cultural material and digital preservation was published in the Official Journal on 29 October 2011.

Advocate General Mengozzi has delivered an opinion on the interpretation of Article 3 of the Database Directive (96/9/EC) in relation to football fixture lists. (Football Dataco Ltd and others v YAHOO! UK Ltd and others, Case C-640/10, 15 December 2011.)  

The ECJ has given its ruling on a preliminary reference from the Court of Appeal on questions relating to subsistence of database copyright in football league fixture lists.  (Football Dataco and others v Yahoo! UK Ltd and others, Case C-604/10, 1 March 2012.) (Free access.)

A recent European Court of Justice judgment has confirmed that the functionality of a computer program cannot be protected by copyright under the Software Directive (91/250/EEC). However, there may be some scope for protection of copyright in elements of user manuals under the Information Society Directive (2001/29/EC).

The High Court has held that databases can be protected from the extraction or re-use of information (that is, sui generis database rights can subsist) where factual data are collated which are available to all. The decision will be welcome to database owners who have seen their rights apparently diminished in a recent run of European Court of Justice cases.

The High Court has given judgment on claims for trade mark infringement, passing off, breach of confidence, infringement of database right and (in respect of one defendant) breach of an employment contract in relation to the unauthorised use of data illicitly taken from BSkyB's customer database. (British Sky Broadcasting Group Plc and others v Digital Satellite Warranty Cover Ltd and others [2012] EWHC 2642 (Ch).)

The European Court of Justice has ruled on the legal nature, within the framework of the Database Directive (96/9/EC), of the sending of data via the internet from a server in one territory to an internet user in another, and the location of any act of infringement arising from such sending of data.

The Court of Appeal has held that the online betting company Stan James and the football data provider Sportradar were jointly liable for acts of database right infringement committed by Stan James's UK customers when they downloaded football results data via its website. (Football Dataco Ltd and others v Stan James plc and others; and Football Dataco and others v Sportradar GmbH and another [2013] EWCA Civ 27, 6 February 2013.) (Free access.)

The High Court has granted summary judgment in a database right infringement claim. (Executive Grapevine v Wall [2012] EWHC 4152 (Ch), 12 November 2012).

An agreement between a database provider and a value-added reseller of that provider's products, drafted from the database provider's point of view.

A specimen data licence, drafted from the perspective of the licensor, for use where a supplier in the financial services sector is supplying data to a customer and granting it a licence to redistribute the data to the customer's subscribers. Personal data will be transferred to the customer and its subscribers, all of whom are located outside the EEA.

A specimen data licence, drafted from the perspective of the supplier, for use where a supplier is supplying personal and non-personal data to a customer who will be using the data for its internal business use. Personal data will be transferred to a destination outside the EEA.

A specimen data processing agreement, drafted from the perspective of the supplier, for use where a supplier is processing non-personal data in accordance with a customer's instructions and supplier data is combined with customer data.

A specimen data processing agreement, drafted from the perspective of the supplier, for use where a supplier is processing personal and non-personal data in accordance with a customer's instructions, personal data is transferred outside the EEA and supplier data is combined with customer data.

A specimen database sale agreement, drafted from the perspective of the buyer, for use where the buyer is acquiring a database which does not contain any personal data and which may or may not form part of a larger asset purchase transaction.

A specimen database sale agreement, drafted from the perspective of the buyer, for use where the buyer is acquiring a customer database and an employee database which contain personal data and which may or may not form part of a larger asset purchase transaction. Personal data will be transferred to a destination outside the EEA.