The British Horseracing Board (BHB) has successfully sued William Hill for infringement of a new type of intellectual property called ‘database right’ (the so-called ‘sui generis’ right).
The case is the first in the UK to be tried under the Copyright and Rights in Databases Regulations 1997 which implements a European Directive on the legal protection of databases. Mr Justice Laddie ruled that in taking information that had originally come from the BHB database and loading it onto its own computers for use on its Web site, without a licence, William Hill was infringing BHB’s database right.
The BHB is the governing authority for the British Racing Industry and since 1964 has maintained a computerised collection of racing information at a cost of around £4 million a year. The database information, which is painstakingly verified, includes up-to-the-minute details on race times, declared runners, jockeys, owners and relative weights. It is made available daily to the participating elements of the racing industry through the joint Weatherbys/BHB Internet Web site as well as being licensed to third parties such as Satellite Information Services (SIS).
Since February 2000 William Hill has offered Internet betting on all mainstream horseracing in the UK. The pre-race information displayed on its Web sites comes from the raw data supplied by SIS. BHB argued that William Hill’s daily use of the data regarding imminent races (which it could be sure was up to date and accurate) amounted to the ‘extraction’ or ‘re-utilisation’ of a ‘substantial’ part of the contents of its database. William Hill countered that it could not ‘extract’ information that had already been pulled off the computer by Weatherbys, nor could it ‘re-utilise’ information that was already available to the public. But the judge decided that ‘extract’ merely meant to transfer to another medium and the fact that the data was available from another source was irrelevant.
William Hill also unsuccessfully argued that the information it used was not substantial as it only made up a small part of the total information stored on the database. The judge decided that the importance of the information to the alleged infringer was a major influencing factor.
BHB put its case in the alternative alleging that in its totality William Hill’s repeated and systematic extraction and/or utilisation of insubstantial parts of the database also amounted to infringement. In response to this William Hill put forward an ingenious argument that the enormous amount of work done by BHB in updating the database meant that new databases were constantly coming into existence and William Hill was therefore not extracting or utilising information from just one database but many. The judge dismissed this, commenting that databases could not always be considered to be only discrete ‘frozen’ products.
The BHB decision underlines the need for caution when using database information of a third party without permission. The defence that the information is already in the public domain is not available. The courts will endeavour to protect the third party’s investment in producing the database and the new database right, although not as strong as copyright, clearly has teeth.
Lou Marshall is a Partner in The Simkins Partnership (www.simkins.com). This material first appeared on LawZone on 16 February.
