Making sense of data - part two

Applying the law around the database right (see last week), the courts have also decided that if your data is a by-product of another activity – for example, if you run a football league and in creating the fixtures for the season you create a database of matches, teams playing each other, locations, dates, time of kick-off – then you haven’t made a substantial investment in the creation of that database. It’s just a by-product of the main activity of running the football league.

Yes, that database is very valuable, but no, it’s not protected by the database right.

Again, this makes absolutely no sense: is a list of forthcoming matches a form of intellectual property? Yes, obviously. Is it protected by copyright? No, it’s the wrong kind of creativity. Is it protected by the database right? No, it’s the by-product of another activity and, because it’s a by-product, a substantial investment has not gone into its creation and (see last week) it fails the qualifying test.

Yes, it’s nonsense, but it’s the law as it presently stands.

What about international protection for data? Thanks to an international convention, copyright is recognised and consistent around the world. Unfortunately, most countries don’t recognise datasets as a form of copyright work. To fill this gap in the EU, the EU adopted the database right discussed above.

However, the database right was only recognised in the EU, and then only in relation to datasets created in the EU. Since Brexit, there are now two database rights. The EU database right, which only recognises datasets created in the EU, and the UK database right, which only recognises datasets created in the UK.

Data may be the new oil, but the world still hasn’t worked out how to handle it.

21 May 2024