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How to increase the chance of
copyright protection for your database in the light of CJEU
ruling
The Court of Justice of the European Union
(CJEU) has
ruled on the factors that the courts must take into account
when deciding whether a database is protected by copyright under
the Database Directive.
Taken alongside earlier CJEU rulings on
"database rights", the impact of the ruling for businesses that
want to protect and/or exploit databases is that:
- If your business compiles a database from
third party data, and makes a substantial investment in obtaining,
verifying or presenting that third party data, then the database
will qualify for database right, and you will be able to prevent
third parties from extracting or re-utilising the contents of the
database without your permission.
- If your business compiles a database from
data that the business itself has created (an "Internal Database"),
then it is unlikely – but not impossible - that the database will
be protected by database right. The key factor will be
whether the business has made a substantial investment in
presenting the database contents.
- In order for an Internal Database to be
protected by copyright, there will need to be an element of
creativity in the way that the database has been structured,
through the selection or arrangement of the contents. If the
selection or arrangement of the contents is determined by technical
factors or by other rules or constraints, rather than through
creative choice, then the database will not be protected by
copyright. Businesses that want to protect or exploit
Internal Databases should take this into account at the design
stage so that, where possible, "creative elements" can be
built-in.
The ruling
In this latest ruling, the CJEU has answered
questions raised by the UK's Court of Appeal in a case brought by
Football Dataco Ltd, the FA Premier League and others against
Yahoo! over unauthorised use of football fixture lists. The
CJEU's Advocate General issued an opinion in December 2011
(reported
here) and the CJEU has now agreed with the Advocate General's
earlier findings.
Data creation v database
creation: Under the Database Directive, databases are
protected by copyright if "by reason of the selection or
arrangement of their contents, [the database] constitutes the
author’s own intellectual creation". The CJEU has
confirmed that, in deciding whether a database meets this
requirement, Member States' courts should not take into account any
skill or effort spent creating the raw data from
which the database is compiled. The only relevant effort is
that spent selecting or arranging the
contents.
Intellectual creation: labour is not
enough: In order for a database to be the author's "own
intellectual creation", there must be some element of creative
choice in the selection or arrangement of the
contents.
Comment
This latest CJEU ruling narrows the range of
Internal Databases that are likely to qualify for copyright
protection. Businesses that want to protect and exploit an
Internal Database should think carefully at the design stage
whether it is possible to create the database in such a way that
will increase the chance of copyright protection.
Even if copyright subsists in an Internal
Database, rights-holders should be aware that copyright will give
them exclusive rights to copy, translate, adapt and distribute the
database, but will not prevent third parties from extracting or
re-using the raw data within it.
Emily
Parris, Senior Associate (PSL),
Technology and
Outsourcing at Field Fisher Waterhouse
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