Data is used to support and shape business strategy. In addition, it can strengthen various business processes. It is therefore logical that more and more companies see value in obtaining and analysing data. They must be protected as we would any major asset. But who actually owns this collected data, the subject about whom the information is collected, the company generating the data, the person collecting the data or the person processing the data? What rights does this include?

Copyright

A database, as stated in Art. 1(2) Database Dir. (96/9/EC), is a collection of independent works, data, or other materials arranged in a systematic or methodical manner and individually accessible through electronic or other means. It is important to note that this does not refer to the individual components of the dataset, but to the protection of the entire database. A database may be protected by copyright, as by the selection or arrangement of their contents they constitute the author’s own intellectual creation and are therefore original. The author, who created the base, shall have the exclusive rights to reproduction, distribution, communication and adaptation.

Database rights

Since 1996, a guideline has already been made which can protect a database, which is not protected by copyright, against extraction and/or re-utilization from insubstantial parts of the dataset. This guideline is called the Sui Generis Right, Art. 7(1) Ddir (96/9/EC). Instead of authorship, this guideline examines the extent to which, in a qualitative or quantitative sense, there is a substantial investment in the field of obtaining, verifying and presenting the data. In the case BHB/William Hill (2004, case C-203/02) it was clarified what is meant by substantial investment and the concept of whole/substantial part. The BHB organization conducts horse racing in Great Britain and has a database on this. William Hill offers off-course bookings using two websites that display a small portion of the database’s content. The case concerned the possible infringement of BHB’s rights by William Hill posting and using the information obtained from the BHB database on the William Hill websites. Ultimately, the Supreme Court’s ruling is that substantial investment does not cover the resources used to create materials that make up the contents of a database. In this context, this means that the drawing up of a horse list by BHB was not seen as the creation of a database but as the data itself. But a by-product of its main activity, organizing horse racing. It was further explained that there is lawful use of a database as long as the cumulative effect of repeatedly retrieving/reusing data cannot largely reconstruct the content or may prejudice the copyright holder.

Consequences

Due to the elaboration of the EU database directives, the scale and scope of database protection under the EU database directives are more limited than expected, especially for sole-source databases. In addition, calling on a database can be complicated because the explanation of the concept ‘substantial investment’ is interpreted in a limited way and finding out in which part of a database a company has invested a lot is difficult. How do you think international law will change as a result of emerging technologies?

Reference

F.C. Folmer, ‘Arrest British Horseracing Board/William Hill: het einde van de spin-offtheorie in het databankrecht?’, NtER 2005-3/4, p.