Chapter 13 Answer guidance to end of chapter questions

1. Why do we need a sui generis database right? Would the law of copyright not suffice for protecting databases? If so, should we repeal the Directive?

Discuss.

To answer this question I would expect the student to discuss in order:

  1. A clear explanation of the two forms of database right. The Art.3 right (copyright in an original database) and the Art.7 right (the sui generis right). The student should clearly outline the distinction between the two – i.e. the Art.3 right is only available where they are “‘the author’s own intellectual creation”.
  2. The distinction between the UK sweat of the brow copyright standard (University of London Press Ltd v University Tutorial Press Ltd) as applied in the listings cases such as Waterlow Publishers Ltd v Rose and Waterlow Directories Ltd v Reed Information Services Ltd and the higher European droit d’auteur standard
  3. A discussion of the problem caused in the database industries by having different standards between the UK and the rest of the EU prior to the directive and the need for harmonisation.
  4. A discussion of the problem of defining the distinction between the Art.3 and Art.7 rights as seen in a number of cases. The student has a wide selection to choose from. Cases such as Navitaire Inc. v easyJet Airline Co. and anor, Football Dataco Ltd v Yahoo! UK Ltd and Football Dataco Ltd v Brittens Pools Ltd.
  5. It is clear in these decisions that the Directive has made a difference. Whereas previously the distinction was a geographical one – the UK protected databases elsewhere in Europe they were not, now we have a distinction based upon the originality of the database. Original databases are protected across Europe by copyright while databases not meeting the Art.3 standard are protected across Europe by the sui generis Art.7 right. Much has in fact changed and the Database Directive must not be repealed. This was also the view of the Commission in the First Evaluation of Directive 96/9/EC on the Legal Protection of Databases.

2. Did the decision of the European Court of Justice in the case of British Horseracing Board v William Hill [2005] 1 CMLR 15 undermine the effectiveness and value of the sui generis database right?

To answer this question I would expect the student to discuss in order:

  1. Students should begin by identifying this is a question on the Art.7 sui generis right rather than the Art.3 copyright provision.
  2. Students should give a clear exposition of the circumstances of the BHB case including the factual background and the issues in dispute. This case should be identified as part of a series of cases taken at this time regarding so called ‘spin off’ databases where the content of the database is created for another purpose and the database is only a subsidiary of that purpose. Other cases that should be mentioned include Fixtures Marketing Ltd v OPAP, Fixtures Marketing Ltd v Oy Veikkaus AB and Fixtures Marketing Ltd v Svenska Spel AB.
  3. Students should identify the two key findings of the case: (1) A ‘substantial part’ of a database evaluated quantitatively and qualitatively means the relative volume of data (quantitatively) and the scale of the investment in the obtaining, verification or presentation of the data (qualitatively); and (2) The purpose of Article7(5) is to prevent circumvention of the prohibition in Article 7(1) of the Directive. Its objective is to prevent repeated and systematic extractions and/or re-utilisations of insubstantial parts of the contents of a database, the cumulative effect of which would be to seriously prejudice the investment made by the maker of the database. The cumulative effects of these it is said was that by interpreting Arts. 7(1) and 7(5) so narrowly the Court had effectively undermined the protection offered by the sui generis database right.
  4. Next is the evaluate this claim. The student should refer to the First Evaluation of Directive 96/9/EC on the Legal Protection of Databases in which the Commission found that 43% of the respondents believe that the legal protection of their databases will be the same as before the ECJ rulings (or even reinforced); only 36% believe that the scope of protection will be either weakened or removed. The findings were that only single source or spin off databases were likely to be effected and this was positive for industry as it allayed monopoly fears.
  5. Finally the more recent Football Dataco Ltd v Sportradar GmbH case demonstrates that with the proper investment in information gathering, processing and authentication even companies who produce single source databases can achieve Art.7 protection.

3. Do you agree with the decision of the CJEU in Ryanair Ltd v PR Aviation BV? Why or why not?

To answer this question I would expect the student to discuss in order:

  1. The ratio in the Ryanair case, that is that a non-protected database was outside the scope of the Database Directive and as such the contects could be regulated (protected) by contractual terms of use.
  2. This is to be set against the decision in CV-Online Latvia SIA v Melons that ‘it is necessary to strike a fair balance between, on the one hand, the legitimate interest of the makers of databases in being able to redeem their substantial investment and, on the other hand, that of users and competitors of those makers in having access to the information contained in those databases and the possibility of creating innovative products based on that information’ and ‘infringement will only occur where the actions of the meta indexer ‘adversely affect [the maker’s] investment in the obtaining, verification or presentation of that content, [such that] that they constitute a risk to the possibility of redeeming that investment through the normal operation of the database in question.’ This seems to suggest non-protected databases as in Ryanair have greater protection through contractual terms than protected databases do under the Directive.
  3. Students should analyse the claim that ‘ it may be better not to qualify for Art.7 protection.’ They should note that in the UK the position post DRSP Holdings is perhaps slightly different in that to scrape data the meta indexing site will need to ensure they have a contractual agreement with the owner of the data, or they will have to ensure they meet the defences available under the Copyright and Rights in Databases Regulations 1997.
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