The trouble with databases

The first problem I have with databases at the moment is that there are two cases going through the courts, both of which have produced references to Luxembourg from the Court of Appeal, and in both of which the first claimant is Football Dataco (and the other claimants are mostly the same, too). Football Dataco Ltd & Ors v Yahoo! UK Ltd & Ors [2010] EWCA Civ 1380 is the first and Football Dataco v Sportradar [2011] EWCA Civ 330 the second: the expeditions to Luxembourg began respectively on 9 December last year and 29 March this year.

Of course, that's not the only trouble with databases. Other problems stem from the uncertain language used in the European Community's directive on the legal protection of the things, 96/9/EC, implemented in the UK by the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032). The directive harmonises copyright protection for databases by requiring that to secure protection they must, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation". Whether the stuff in the database is protected by copyright doesn't come into it: the directive gives that stuff no protection, though it might well have it anyway, and the directive (Article 1(2)) defines a database in terms that envisage a collection of material that has its own copyright protection as well as mere data that don't (and always remember, dear reader, that "data" is a plural, and resist the process by which usage is making it a singular noun, because where would that leave the word "datum", as in "Ordnance Survey Datum" and how would we then know whether sea levels were rising?):

... 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 Case C-444/02, Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou AE (OPAP), the Court of Justice held that "independent" means "separable from one another without the value of their contents being affected", or alternatively (and it is not clear where the Court got this from, and it doesn't appear in the ruling at the end of the judgment) it means that the data have "autonomous informative value". Given that all these cases involve databases of football fixtures, let's be specific: there are dates, times, and names of teams in the database, along with venues perhaps and in due course scores (though at the stage in which the gambling industry is concerned those are obviously in the future).

So, I think it's fair to say that date, time and teams constitute independent materials when taken together. What isn't clear from the Fixtures Marketing case is whether that material constitutes data, but it's hard to see what else it might be. It's certainly not copyright works, and once the directive had specifically enumerated works and data the addition of other materials seems to serve little purpose - other than to allow the Court to leave us partly in the dark at this point.

What also isn't clear is whether the date, the time, and the teams are themselves data or  materials, and if so (and surely they have to be one or the other) whether they are independent. They have autonomous informative value, surely, although taken singly they convey no information about actual football matches.

In the Yahoo reference, the Court of Appeal asks whether the intellectual effort and skill of creating the data should be excluded when applying the "own intellectual creation" test. However, that test looks at selection and arrangement rather than creation per se - so there's a subtext here, with the court asking whether the creation of data (and perhaps it should have said "independent data", although it has left it open for the Court of Justice to elaborate on the difference) might constitute selection and arrangement. How about: selecting and arranging odd little bits of data with no autonomous informative value of their own, like dates and names of teams, so as to create what the Court of Justice has identified as independent data, can satisfy the test? There's a further complication, because the legislation talks at one moment about contents and at another about independent data, but I see no insuperable problem there - the database contains independent works, data or other materials (and the adjective seems, on the basis of the Fixtures Marketing case, to qualify all three nouns). But if it contains independent data it must logically contain non-independent data too, so perhaps the question boils down to whether selecting and arranging the non-independent data so as to create independent data can satisfy the "own intellectual creation" test.

Then finally there's perhaps the most important question of all:  "does 'author’s own intellectual creation' require more than significant labour and skill from the author, if so what?". In Case C-5/08, Infopaq International A/S v Danske Dagblades Forening, the Court of Justice stated that a work would only be protected by copyright if it was its author's own intellectual creation, a proposition which it took not from Directive 2001/29 but from the simple use of the word "work". That seems a shallow foundation on which to build a challenge to a fundamental principle of copyright law - but perhaps it will cut back some of the excesses of copyright protection that have grown up in the recent past. Crucial to determining what the scope of this newly-found requirement is, will be the answer to that question. If the "author's own intellectual creation" test is more rigorous than what we are used to in the UK if not elsewhere (as it surely must be) the answer to the Court of Appeal's question will show us the future of copyright law.

The Sportradar case involves another part of the directive, the one that created a sui generis right to protect databases - which in the UK we called "database right", the use of legal Latin being malum prohibitum. (But calling it a sui generis right, using a generic term for a particular example of the genre, is so extraordinarily unhelpful that one has to prefer the UK's approach.) The right covers unauthorised extraction and re-utilisation of the contents of the database, and re-utilisation means "any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by online or other forms of transmission" (Article 7(2)(b)). The key issue in the case is jurisdiction, as there are proceedings on foot in Germany and the UK, and where the contents of the database are being made available determines which court can proceed with the case: is it Austria or Germany, where the servers are situated, or the UK where punters log on to the Internet to interrogate the data on the servers?

"Making available to the public" is also an important concept in copyright law, so the answer to this question will be important for more than just database right - and might be as revolutionary for the copyright system as the earlier question about intellectual creations.