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Database rights can subsist in PDFs, rules High Court

A PDF version of a document can constitute a database and information contained in it can be protected by database rights, the High Court in London has ruled.08 Sep 2017

David Stone, sitting as a deputy High Court judge, was considering the issue of whether a PDF could be classed as a database under the EU's Database Directive in a case concerning a dispute between a medical technology supplier and a health provider and another supplier.

Stone determined that Bluecrest Health Screening (Bluecrest) and Express Diagnostic (Express) infringed database rights and copyright owned by Technomed in health screening reports produced for Bluecrest customers.

Technomed supplied electrocardiogram (ECG) equipment, systems and services to Bluecrest Health Screening (Bluecrest) which allowed Bluecrest customers to have an ECG screening and have their results provided in a report containing analysis and explanation from Technomed. The Technomed report was fed into a broader health screening service and a report provided by Bluecrest to its customers. When Bluecrest terminated its contract with Technomed it engaged Express Diagnostic (Express) to provide essentially the same services Technomed had.

However, Technomed claimed Bluecrest and Express infringed its database rights and copyright in the reports they produced after its contract was terminated. The companies argued over the extent to which database rights and copyright could be claimed by Technomed, but Stone ruled that various aspects of the reports Technomed produced benefited from such rights and that certain versions of the reports Bluecrest and Express produced infringed those rights.

One of the arguments before the court concerned whether Technomed could assert database rights in PDF versions of the documents it produced.

According to the ruling, Bluecrest and Express "appeared to suggest that a PDF can never be a database – on the basis that it is akin to a photograph of a database, rather than the database itself". However, Stone held that Technomed's PDFs were databases for the purposes of the Database Directive and that database rights subsisted in them.

The judge suggested that a PDF may not always qualify as a database and that how it is used will be a factor in whether database rights subsist in them.

"In my judgment, the use to which [Technomed's database] can be put (and indeed was put by [Bluecrest and Express]) is no different to a telephone book (where accessing a name carries with it an address and a phone number) or a list of football [fixtures]. I do not accept that a PDF document cannot be a database for these purposes. Clearly, the contents of the PDF can be accessed, either through electronic conversion, through digital character recognition, or old-fashioned reading or re-typing."

"[Bluecrest and Express'] submission may have had greater force if in fact [they] had not used [Technomed's database] as a database. However … not only did [they] copy the entire database, but they also electronically accessed the contents of the database," he said. "[Technomed's database is a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. In my judgment, it is a database within the meaning of the Database Directive."

The Database Directive was established as a way of harmonising the law protecting databases so as to encourage the development of database-dependent businesses in the digital age by creating a 'sui generis' database right that can protect certain sets of data that cannot qualify for copyright protection. Copyright law alone cannot offer protection to database creators where the database contains facts, as facts in and of themselves are not necessarily capable of being copyrighted.

Database rights protection does not apply to every aggregation of data. Only if database creators have invested sufficient time, money and skill into developing their database will those creations be protected by database rights. Databases that arise as a by-product of doing business do not attract database right protection.

Those with database rights can generally "prevent extraction and/or re-utilization of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database", according to the Database Directive.