At the start of last week, I mentioned the case of Crowson Fabrics v Rider and Others, in which the Court found that the database right existed in certain information taken from the Claimant by the Defendant, such as customer contact details. (The previous link is to the judgment, now available on BAILLI).
So that you don't have to click back, my comment in the previous post was:
This [case] has taken many IP lawyers by surprise; in the aftermath of certain European Court of Justice judgements in 2004 the database right was thought to be a lame duck by most. Those judgements meant that the right only arose where there had been a substantial investment in the obtaining, verifying or presenting of the database content - a test that most databases will fail to meet. Was this test applied by the Court in Crowson?
We've now had a chance to look through the Crowson judgment and so can report further.
A bit of background: the database right
The database right came into existence in 1998 when the EC Database Directive was implemented into national law. As stated above, the right will come into existence where there has been "a substantial investment in obtaining, verifying or presenting the contents of the database".
In the 2004 cases referred to above, the European Court of Justice (ECJ) considered whether the database right applied to:
- A database maintained by the British Horseracing Board (BHB), that costs about £4 million per year to keep up to date; and
- A database maintained by the Fixtures Marketing Board (FMB), that costs over £11 million to maintain.
In the run-up to the rulings, a lot of IP lawyers thought that it was a dead-cert that the ECJ would find the database right applied to these cases.
As we've seen, however, it was ruled that the database right did not apply to the databases in question. The ECJ applied the database right test in a very narrow way: there had to be a substantial investment in the content. This interpretation meant that in each case, there was no database right because the investment wasn't in the content itself, or verifying the accuracy of the content; the investment was in the creation of that content, which was not something that was relevant to the database right.
The narrow interpretation of the rulings effectively meant that most IP lawyers regard the database right as pretty useless. This view was shared by the European Commission, which in 2005 released its first evaluation of the database right. The evaluation concluded that, following the ECJ rulings, the database right would apply to few databases. The Commission also concluded that the database right was confusing and had done nothing to encourage growth in the European database industry.
Does Crowson breathe new life into the database right?
So, how did the Claimant in Crowson succeed where the mighty databases of the BHB and FMB failed? Some clever new argument to defeat the ECJ's narrow interpretation of the database right?
Having reviewed the judgment, the answer looks to be: the Claimants established the database right because their contention that the right existed went largely unchallenged by the Defendant. After the Claimant submitted evidence of a substantial investment in the database, the Defendant didn't question that investment. The Court therefore accepted the investment as being in the content and as being substantial. Want to see for yourself? Go to paragraphs 117 and 118 of the judgment. The most relevant is 118:
"The Defendants put the Claimant to proof of such investment. It was provided in Mr Worrall's 1st Witness Statement (para 28) and his 2nd Witness Statement (Paras 31-35). The evidence was not challenged; indeed Mr Worrall was not cross examined on it at all. The Claimant has satisfied me on the basis of his unchallenged evidence that it has made a substantial investment in the Database as required by the Regulations. Further it is plainly the Owner of the right."
The judgment is not accompanied by the witness statements referred to, so we cannot see the details of that investment. However, given the narrow interpretation of the test for database rights applied by the ECJ, regardless of the strength of the Claimant's argument or evidence on the point, I think it extremely unlikely that the Claimant would have succeeded in establishing the database right had the Defendants made a challenge. This view is and will remain theoretical; we could only know the answer for certain had the challenge been made and the Court considered the issue.
The moral of the story for claimants wishing to assert the database right following this case has to be: have a go, and good luck. If the Defendants don't take you up on the issue, there's a chance you'll succeed.
Confidentiality issues
It's a good job that the Claimant (somehow) succeeded in establishing the database right. This is because the Claimant's other argument - that the Defendant's use of the Claimant's information was in breach of confidence. This argument failed because of the lack of any express confidentiality obligations in the Defendant's employment contract with the Claimant. The Court found that there was no implied duty of confidentiality on the facts. This emphasises the importance of getting suitable contracts in place.
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