Comments made by CJEU advocate-general Maciej Szpunar in an opinion to the CJEU at the end of January suggest that the protection afforded by the EU database right may be set to thin. Database creators should look for other ways to protect their investment including using technological measures to protect against scraping, and setting up contractual protections for data licensing.
By way of recap, database right is an EU-based right under the Database Directive (96/9/EC). It is available to “makers” of a database that can show both: (i) substantial investment in obtaining, verifying or presenting the contents of a database; and (ii) that they qualify for protection by virtue of being an EEA national, resident, or business. Following the end of the UK-EU transition period, UK citizens, residents and businesses are no longer eligible to receive or hold new EU database rights, unless they qualify for protection by virtue of also being an EEA national, resident, or business. However: (i) makers of EU database rights arising under the Database Directive before the end of the transition period have been accorded equivalent UK rights with the same term of protection as the EU right, provided that they: (a) continue to qualify for protection under the Database Directive; or (b) are a UK national, resident or business; and (ii) the UK government has legislated to create a new UK database right which may arise in databases created after the end of the UK-EU transition period - this new right gives the same rights in the UK as the EU database right gives in the EEA, for the same duration.
An extra hurdle to bringing a successful database infringement claim?
In his opinion delivered in connection with a CJEU reference by the Regional Court of Riga, AG Szpunar suggests that the CJEU should rule that rights holders can only stop data from being extracted from databases or reused when the conduct they are complaining of affects their investment in obtaining, verifying or presenting the information that makes up databases. His opinion appears to be motivated by desires to: (i) balance the interests of database operators with those of content aggregators and users of content aggregation services; and (ii) prevent database rights being used to exclude others from the same markets as those in which the database right holders operate. In AG Szpunar’s opinion, the EU database right is “intended to afford protection not against all competition but against commercial parasitism”.
The practical effect of AG Szpunar’s opinion is to suggest:
- raising the bar for bringing a successful database right infringement claim in a way that might make it impossible for database right owners to enforce their rights shortly after infringement begins (as at that stage it will be difficult to prove a risk to investment given there will be limited evidence of the effect the infringement has had on the database right holder’s business); and
- that those who do not directly compete with a database right holder will be able to exploit the investment made by that right holder without the risk of facing an infringement claim.
If the CJEU follows AG Szpunar’s opinion, database right holders who currently make their databases publicly accessible online with a view to monetising those databases through granting licences for their commercial use, may start taking those databases behind firewalls or implementing other technical measures to protect their databases from re-use (such as measures that block scraping).
Maximising protection for data
The CJEU judgment in this case is expected in the next few months. Regardless of the way the CJEU rules, creators of databases should not overlook the importance of securing contractual rights to data and databases, in particular through the negotiation of: (i) contractual allocations of rights in contributed and derived data; and (ii) licence terms (which clearly set out permitted uses of data). Where both UK and EU makers are involved in creating a database, structuring the arrangements so that those creators are “joint” makers may result in protection in both the UK and the relevant EU member state if that member state provides that database right subsists in databases with at least one qualifying (ie EEA-based) maker.