Database right in the United Kingdom

The law flows from a Directive (96/9/EC) on the legal protection of databases which really introduced into the laws of the United Kingdom the so-called "sui generis" right. It may be described as a sui generis right but, as an intellectual property law specialist, I observe that it has the attributes of one of the rights belonging to what I think of as the extended family of copyright (just as unregistered design right is, as are the moral rights such as the paternity right). Art. 16.1 of the Directive provided that Member States were to bring into force the legislation (in the UK, regulations) necessary to comply with the Directive before 1 January 1998.

On 17 December 1997, the UK made SI 1997/3032, the Copyright and Rights in Databases Regulations 1997, which came into force on 1 January 1998.

Simply, database right protects investment in obtaining, verifying or presenting the contents of a database, and infringement of the right would involve unlicensed transfer of the contents to another medium by any means or in any form, or making those contents available to the public by any means.

(There is still the distinct right known as a copyright, see section 3A CDPA88, which may protect the selection or arrangement of the contents of the database, and infringement of the right would involve the same nature of acts as amount to infringement of other literary works.

Further, there is still the distinct right known as copyright, which may protect separate elements of the database, as literary works, if those elements themselves amount to literary works, and infringement of that right would involve the same nature of acts as amount to infringement of other literary works. This is the copyright claim made in the Jobserve v RDL Ltd and others Ads Claim, see below, on the basis of the work which went into formatting each advertisement into a distinctive format, which was reproduced without licence.)

There have been few cases relating to database right in the UK. They include the following:

1. Mars U.K. Ltd v Tecknowledge Ltd [2000] FSR 138 (very minor part in the report, if anything).

2. British Horseracing Board Ltd v William Hill Organization Ltd [2001] RPC (Laddie J). This case was centred on the database right, as it related to the database of information relating to horseracing held by the Claimant.

3. British Horseracing Board Ltd v William Hill Organization Ltd [2002] RPC (Court of Appeal), leading to a reference to the European Court of Justice (there have been some database right case findings in other courts of other jurisdictions in the Community which appear to conflict with that of Mr Justice Laddie and so it was not inappropriate for the ECJ to state the law so as to ensure that it is applied in an harmonised manner throughout the different jurisdictions in the Community). The Court of Appeal supported the construction, and application of the law to the facts, of Mr Justice Laddie in the Chancery Division, or they would have save for the scope of the reference. In my opinion, Mr Justice Laddie's decision in this case was sound, and I would have taken some persuading to limit the ambit of the database right. Nevertheless, the reference to the ECJ of various issues and the consequent decision and related decisions of about 9 November 2004 have to be read, and carefully read, to see how the ambit of database right seems to have been narrowed down by the ECJ in those decisions by concentrating upon the "investment" issue. The ECJ also addressed the "many little bites" aspect of the infringement issue on the reference.

4. Jobserve Ltd v (1) Relational Designers Ltd (2) RDL Group PLC (3) Skillsite Ltd (4) The Directories Internet Ltd (5) Andrew Richards HC01C04950 ("CVs Claim"). This case related to a profitable dot.com, a pioneering jobsboard business which was very well established in the United Kingdom in relation to IT jobs. It involved "meta-tagging" by the use of the word JOBSERVE in the source code of the website of rival jobsboards, and various other claims, but the essential claim was of infringement of database right subsisting in Jobserve's database of candidate CVs. Candidates sent to the jobsboard host, Jobserve, their CVs for it to circulate under certain conditions to subscribers who were recruitment agencies with clients having IT job vacancies. The First and/or Second Defendants (both subsequently gone into administration) were subscribers to the Claimant's CVs Service, obtained the CVs, and then passed them to the Third Defendant who ran a rival CVs Service. An application was made for various interim injunctive relief. By the time the application was due to be heard on 1 February 2002 before Mr Kevin Garnett, QC, several undertakings had been given and these were accepted by the Court, with limited argument only occupying the Court for about one day. Subsequently, the Claimant applied for special disclosure relief and accepted by a Consent Order dated 14 May 2002 a regime of quarterly disclosure by CD of the online database of the Defendants, complemented by a verification procedure involving the Claimant being given online access to the Defendants' online services which were otherwise only available to paying subscribers to the service. The liability stage of the Claim was settled by maintaining the negative prohibition undertakings permanently, and other relief, by a Consent Order dated 31 October 2002, leaving the quantum proceedings which are ongoing.

5. Jobserve Ltd v (1) Relational Designers Ltd (2) RDL Group PLC (3) Skillsite Ltd (4) The Directories Internet Ltd (5) Andrew Richards HC02C00034 ("Ads Claim"). This case involved the same parties as the case above, but the essential claim was of infringement of database right subsisting in the database of advertisements placed by recruitment agencies to be processed and published on the Claimant's jobsboard for jobseekers to peruse. The Third Defendant reproduced job advertisements taken from the Claimant's jobsboard upon its own rival jobsboard. An application was made for various interim injunctive relief. By the time it would have been heard on 1 February 2002 before Mr Kevin Garnett, QC, several undertakings had been given and these were accepted by the Court. The liability stage of the Claim was settled by maintaining the undertakings permanently, and other relief, by a Consent Order dated 1 July 2002, leaving the quantum proceedings which are ongoing.

As junior Counsel for Jobserve Ltd., in the above 2 cases, and having been instructed by Messrs Wollastons, Solicitors, of Chelmsford, Essex, to act for Jobserve Ltd., the only European dot.com which has been profitable for some time, in other intellectual property matters which have proceeded to litigation, and in other matters which have not led to active litigation, I have had to consider the application and usefulness of the database right on numerous occasions.

It will be noted that the Jobserve cases were not cases of persons obtaining data to which they should not, or could not, have had access lawfully. It was a commercial case, involving what amounted to a serious complaint about an unlicensed use of information which had been acquired by a rival. The case really epitomises one of the few changes of law which has been effected to reflect the commercial needs of the information age of the modern computer and the internet. It has seemed to work well, as intended.

6. Jobserve v Skillsite, Hall & Richards. This was really a revisiting of case 4 above. Undertakings to the Court given by Skillsite had been alleged to have been breached. Hall & Richards were directors of Skillsite. Jobserve brought committal and permission for sequestration proceedings to try to enforce the undertaking (1)(c) in the interim and final order in relation to CVs of some 296 identified candidates by a 10% sampling technique which meant that some 2960 candidates had their CVs on Skillsite's online database when they should not have done. Skillsite argued on these quasi-criminal proceedings that the undertaking (1)(c) was unclear and ambiguous and that, on the authority of Haddonstone v Sharpe, the construction should be against the contra prof rule, to favour the alleged contemnor, and to lead to a finding of not guilty. Skillsite had found some 6700 candidates whose CVs were on its online database whose CVs fell into the category complained of. The Court found the undertaking (1)(c) was clear, not ambiguous, and that the respondents were guilty as alleged, but not contumaciously so, and so there was no order save that Jobserve's costs were ordered to be paid by the Respondents on an indemnity basis, with interim payments on account amounting to £70k. Permission to appeal refused. Procedurally, after the Applicant had led its case and evidence, the Respondents submitted that there was no case to answer having regard to its constructions arguments and elected to press forward with that submission on the basis that, if the submission was not successful, the only evidence the Respondents would lead would relate to sentence and mitigation. It was unsuccessful. Again, the right has seemed to work well, particularly when coupled with at least relative confidentiality of contents of CVs.