Opinion of the Advocate-General of the European Court of Justice ('ECJ') (Case C-203/02)
On 8 June 2004 the A-G gave her opinion on 4 cases referred to the ECJ for interpretation of the provisions of Directive 96/9/EC on the legal protection of databases. One of the cases was the decision of the High Court in British Horse Racing Board v William Hill (referred to the ECJ by the Court of Appeal).
Recap on database right
The Directive was implemented into UK law by the Copyright and Rights in Databases Regulations 1997 ('DRegs').
The DRegs created an entirely new right (called "database right") in respect of a database where there has been "substantial investment in obtaining, verifying or presenting the contents of the database"
The maker of the database (i.e. the person who invests) is the owner of the database right. Where the database is made by an employee in the course of employment the employer is regarded as the maker subject to any agreement to the contrary
A person infringes database right in a database if they, without the consent of the owner extractor re-utilise all or a substantial part of the database
The repeated and systematic extraction or re-utilisation of insubstantial amounts may infringe
The term of database protection is 15 years from the end of the year in which the database was made (or first made available to the public)
A-G's Interpretation of the Directive
In assessing whether there is an infringement:
the only activities capable of infringing are 'extraction' and 're-utilisation'
the purpose for which the maker created the database is irrelevant
similarly, the intention of the user is not relevant; commercial use is not a decisive factor
'a substantial part of the contents of the database' includes works, data or other material derived from the database but which do not have the same systematic or methodical arrangement and individual accessibility as the original database
the fact that the contents of the database are otherwise publicly available, does not have any bearing on the protection of the database
Unlike 'extraction', 're-utilisation 'includes indirect means of obtaining the contents of the database. Therefore a person may re-utilise the contents of a database without having direct access to the database from which the contents are derived (or realising they have done so)
'Obtaining' does not include the mere production of data by the maker, but if the collection and screening of the data takes...