British Horseracing Board v William Hill
Court: European Court of Justice
Judge: Skouris (President), Jann, Timmermans, Rosas and Lenaerts (Rapporteur), (Presidents of Chambers), Puissochet, Schintgen, Colneric and Cunha Rodrigues (Judges), Stix-Hackl (A-G), Múgica Arzamendi and Contet (Principal Administrators)
Date of judgment: 9 Nov 2004
Database right - Infringement - Horseracing database - Indirect sourcing of data - Extraction or re-utilisation of substantial part - Repeated and systematic extraction or re-utilisation of insubstantial parts - Copyright and Rights in Databases Regulations 1997 - Database Directive 96/9/EC
Instructing Solicitors: Addleshaw Goddard for BRB; SJ Berwin for WH
British Horseracing Board (BHB) is the governing authority for horseracing in the UK. It maintains a database containing, inter alia, extensive pre-race information. William Hill (WH), the leading bookmaker, repeatedly obtained information indirectly from BHB’s database (via third parties licensed by BHB) and used it on its website. BHB claimed that WH’s use of the data infringed its database right contrary to the Database Directive 96/9/EC and Copyright and Rights in Databases Regulations 1997. Laddie J granted a permanent injunction. The Court of Appeal referred various questions to the European Court of Justice.
(1) Whether WH’s use of data indirectly sourced from BHB’s database constituted extraction or re-utilisation of a substantial part of the BHB database;
(2) Whether WH’s actions amounted to a repeated and systematic extraction or re-utilisation of insubstantial parts of the database, such as to conflict with normal exploitation of the database or unreasonably prejudice the interests of the maker of the database.
Finding no infringement of BHB’s right:
(1) The right under the Database Directive protects investment in seeking out and collecting existing independent materials and collecting them in a database. It does not protect investment in the creation of data. Indirect sourcing, as opposed to mere consultation, may constitute extraction and re-utilisation. The material used by WH was quantitatively insubstantial, and as it had not been the subject of investment independent of that required for its creation, it was not qualitatively a substantial part.
(2) WH’s repeated and systematic extraction and re-utilisation of insubstantial parts did not reconstitute and/or make available to the public the whole or a substantial part of the contents of the database, and so did not conflict with normal exploitation of it or seriously prejudice BHB’s investment.
The decision of the ECJ shows that the sui generis database right does not have the monopolistic effects that some have predicted. However, the full extent of the right remains to be determined. Some compilations and databases are also protected by copyright as ‘literary works’ (sections 3(1), 3A CDPA), although again the difficult question is whether or not a particular use amounts to an infringement. Much depends on the distinction between the data and the compilation. The same is true of the database right. As part of its decision, the ECJ decided that the intrinsic value of the works taken from a database is irrelevant when deciding whether or not a “substantial part” of a database has been used. Note too the potential effects of article 10 of the European Convention on Human Rights.