Making sense of data - part one

This is the first of a multi-part series on the legal issues surrounding data.

The first question to answer is: can you have property in data? As a comparator, you can have property in software – software is protected by copyright. So, is there copyright in data?

In the UK and the US, not anymore. Back in the day, in common law countries, there were two forms of copyright: standard copyright (created with some kind of creativity e.g. a novel) and “sweat of the brow” copyright (created with labour, but not much creativity e.g. a database or a directory).

The US moved away from “sweat of the brow” copyright in the 1980s, and the UK did the same in the 1990s as part of the harmonisation of EU legislation (both changes based on misguided ideological reasons which are too lengthy to explain here).

The EU, recognising that, in a an increasingly digital world, there had to be some kind of property for data (but reluctant, for the reasons mentioned above, for the protection to be copyright), introduced the ‘Database Right’. The Database Right is essentially copyright but dressed-up in a different form and with a shorter term of protection.

But, here’s the rub: the database right only comes into existence if you have made a substantial investment in the obtaining, verification or presentation of the dataset.

What is a substantial investment? Unhelpfully, the law doesn’t say.

More significantly, the investment qualification doesn’t make sense. Try out this thought experiment. Imagine two companies, Company A and Company B. Coincidentally, both companies develop exactly the same dataset, Dataset X.

Company A used a substantial investment to develop Dataset X: the database right applies to its version of Dataset X.

Company B used an insubstantial investment to develop its version of Dataset X (coincidentally, it’s exactly the same dataset). Therefore, the database right does not apply to Company B’s version of Dataset X.

Which is the more efficient producer, Company A or Company B? Answer: Company B, because it used less than substantial investment to create its version of the dataset.

Therefore, the more efficient a producer you are, the less likely it is that your dataset will be protected by the database right.

Yes, the law can be an ass.

14 May 2024