Database rules to go to European Court for clarification

The original judgement in February was the first in a UK court on the Copyright and Rights in Databases Regulations of 1997. The court looked at how a web site could amount to a database under the Regulations which were based on a European Directive. The referral to the European Court will question its findings.

Traditional copyright laws, generally associated with works of artistic merit, are unsuited to databases, despite the fact that a lot of time, effort and skill may be invested in compiling a database. The Directive and Regulations were introduced to give special protection to databases.

The dispute concerned the repeated use by William Hill of parts of the Horseracing Board’s database which provided pre-race information. The Horseracing Board made its database information available to a third party by means of a raw data feed. The third party forwarded the raw data feed to William Hill. The Horseracing Board successfully challenged William Hill’s use of the information on its web site, basing its argument on the database rules. William Hill failed in its argument that the information was already available to the public in The Racing Post and other publications licensed by the Horseracing Board.

William Hill appealed the decision and the accompanying injunction against its use of the database information. Among other things, it argued that the judge in the original case had interpreted the EU’s Database Directive, the source of the UK Regulations, incorrectly. William Hill said that the judge had given too wide a meaning to the database right and what it protected. It argued that:

"information which might have been thought to have entered the public domain and to be freely usable could prove to be derived from a database the right in which was protected even though the user was unaware of that ultimate source and right. Other national courts had adopted narrower approaches to database right and there had so far been no European Court of Justice ruling on the interpretation of the Database Directive."

William Hill went on to say that the relevant provisions of the Database Directive were not set out clearly and that the matter should be referred to the European Court of Justice for clarification.

The Court of Appeals agreed that the matter should be referred to Europe for clarification, reasoning that “the points made were of wide importance” and that domestic courts could not resolve the issues with complete confidence.

The Court of Appeals called upon Counsel for both William Hill and the Horseracing Board to co-operate and decide upon the questions to be referred. William Hill has already suggested asking the European Court whether “extraction” or “re-utilisation” under the database rules involves having access to the original database or a copy of it. It also wants the European Court to determine, where there is a constantly updated database, whether there is a new database separate from the previous database whenever any substantial change occurs.