How to increase copyright protection for your database - CJEU ruling

How to increase the chance of copyright protection for your database in the light of CJEU ruling

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 is a Senior Associate (PSL) in the Technology & Outsourcing Group at Fieldfisher.