Database right: where have we got to?

The Copyright and Rights in Databases Regulations 1997 came into force on 1 January 1998, implementing the EU Database Directive. Since the regulations came into force, the courts have been asked on several occasions to clarify the scope of the new database right. This article considers those landmark decisions.

Database right subsists in a database if there has been ‘a substantial investment in obtaining, verifying or presenting the contents of the database’ (regulation 13 of the regulations). In British Horseracing Board Ltd v William Hill Organisation Ltd, the European Court of Justice (ECJ) clarified that the phrase ‘invested in obtaining the contents’ refers to resources that are used to find existing independently created materials and to collect them as a database; it does not cover the resources used to create the materials that sit within the database. This means that the sui generis right does not extend protection to databases compiled by organisations that, as part of their functions, create the original data contained in their databases.

This decision has had particular ramifications for sports companies that create databases, which may originate the data within their databases but which may not need to seek out the data or verify them. For instance, in Football Dataco Ltd v Yahoo! UK Ltd, the ECJ found no sui generis right in a database of football fixture lists, as the database was composed of data created by and exclusively available from the database owner. Conversely, in Football Dataco Ltd v Stan James plc and Football Dataco Ltd v Sportradar GmbH, the Court of Appeal, upholding the High Court, held that factual data that was recorded at a live football match was not created by that person and the data in the database represented a ‘considerable investment’ that was capable of protection by the sui generis right…

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