Following morning coffee, deep in the bowels of the Grange Fitzrovia Hotel, Christopher Sharp (Herbert Smith Freehills) took up cudgels on behalf of the neglected, unloved subject of database right under the
Database Directive. After a brief introduction to that right's conception and birth, he provided a structured scheme for demonstrating the relationship between traditional UK/EU copyright -- which now no longer protects databases -- and the sui generis database right, and between the content of a database and its structure. Examples of databases included football and horse-racing fixture lists, telephone directories, customer lists and collections of law reports.
Databases are protected where there has been "substantial investment" in obtaining, verifying or presenting them -- but not in creating the data in the first place. What's the difference between obtaining and creating data, bearing in mind that the right covers only objective, not subjective data? The addition of subjective data to objective data does not mean that that subjective data is covered by database right, but neither does it detract from it. Christopher emphasised that the objective of database right is to promote and protect investment in data storage and processing, but not in its creation. The right runs from the date of completion or making publicly available until the end of the 15th year following that date. New investment generates a fresh new term, which is database right's big advantage.
The structure of a database is protected by copyright, where the author's original creativity has gone into it. This is a criterion which considerably limits the applicability of copyright. The copyright in databases created in the course of an author's employment lies with the employer, he added.
Christopher then ran through the basics of infringement and enforcement, mentioning the recent jurisdictional problems that have cropped up where the re-utilisation of a database occurs in a country other than that in which the database is accessed. He then offered some thoughts on what constitutes the taking of a "substantial part" of a database, which may be a small part of the data by volume but a large part by value. Turning to defences, the most reliable and best defence is that the alleged infringer is a lawful licensee; the making of irregular, insubstantial use of another's database is unlikely to be applicable very often. In terms of remedies, infringement of database rights offers all the usual relief -- but do check out the
IP Enforcement Directive, which applies to database rights as well as to better known IP rights.
Has the sui generis database right really added anything? Objections have been raised that it comes perilously close to protecting information per se, but this is a right that has been well drafted and makes sense, which is both why it works well and why we hear so little about it.
"I'm the fluff", announced Serena Tierney when introducing herself as the speaker whose bounden duty it was to talk about copyright licensing, business models and the prospects of the Copyright Hub. To those who recall James Tumbridge's earlier comments about passing off involving vacuum cleaners, this might have suggested that Serena was in some danger. Fortunately this was not the case -- and Serena delivered a highly instructive talk about copyright licensing, the problems of getting an appropriate Getty Image for David Cameron (among other things).
Serena recited the famous tale of Google's allegation that it could never have started if it was launched in the United Kingdom, the genesis of the Hargreaves Report. She then asked some very searching questions about the proposed Digital Copyright Exchange and need for reform in light of the bits of the copyright system that was (still) working well. As it turned out, there were already quite a few digital copyright libraries (including collecting societies and photo libraries) around with facilities for licensing -- but there were some loose strings in need of being tied up. For example, prospective licensees needed something to guide them as to which licensing database they needed to approach in the first place, and automatic online licensing and paying procedures could be developed. This was something that could be done by industry itself -- and this is what is now what is happening with the not-for-profit
Copyright Hub.As for the Copyright Hub itself, much of it, as the website makes plain, is work in progress. The educational side of its operations are those that have advanced the furthest. An alpha test of the Hub's free-to-use image licensing software takes place on 5 November, with a beta test scheduled for March. The Hub is working with Australia, Singapore and other countries in order to offer seamless and efficient licensing of copyright-protected materials. Community radio ("Radio in a box") licences are among the more promising focal points for frictionless easyclick licences for use that is governed by time, space and subject matter.
