The recent case of the British Horseracing Board v William Hill is the first substantive judicial pronouncement on the scope of the database right. The initial High Court decision by Mr Justice Laddie was appealed to the Court of Appeal, who have in turn taken the somewhat unusual step of referring the case to the European Court of Justice.
The database right was introduced into UK law in 1997 by using a regulation to effect the direct adoption of the 1996 EU directive. Database right is a form of junior copyright and was introduced as a response to the divergent approaches amongst EU member states to copyright protection and particularly the question of “originality”. The UK customarily requires a fairly low standard of originality – i.e. your work must not have been copied from somebody else’s. Some commentators say that this is one of the reasons for the greater development of the database industry in the UK compared to other EU states, where there are higher standards of originality.
Database right belongs to the database maker as long as the maker can show that there has been substantial investment in obtaining, verifying or presentation of the contents of the database. The database right, which it should be added is in addition to (and not to the exclusion of) copyright, lasts for 15 years and prevents the unauthorised use of a substantial part of the database by:
- extraction from the database – the permanent or temporary transfer of the contents to another medium;
- re-utilisation of the database – making those contents available to the public.
In brief the facts of the BHB case were that the BHB maintains extensive information about the 1,200 or so race meetings (runners, riders etc) which are run in the UK each year. William Hill, one of the UK’s largest bookmakers, used and displayed a large quantity of data which originated (directly and indirectly) from the BHB database.
At first instance, in a detailed and comprehensive judgment, Mr Justice Laddie held that:
- the BHB database qualified for database right;
- William Hill had both extracted and re-utilised a substantial part of the databases.
An injunction was therefore granted in favour of BHB.
As an aside, BHB did not assert copyright in the database – possibly because they were concerned that William Hill would raise an article 86 (abuse of dominant position) defence – and Mr Justice Laddie acknowledged this but did not comment further on the copyright position.
William Hill appealed and in a very brief judgment the Court of Appeal held that Mr Justice Laddie’s findings of facts were about right. However, they went on to decide that the question of the interpretation of the database right should be referred to the European Court of Justice as there was evidence that the scope of database right had been interpreted in other European jurisdictions in a rather more restrictive manner (and thus in a potentially more favourable manner for William Hill).
Expect to wait a few months for the ECJ to deliberate over this.