David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Considers the impact of four European Court of Justice rulings, including British Horseracing Board Ltd v William Hill Organisation Ltd (C-203/02), which examined the scope of the sui generis database right under European Parliament and Council Directive 96/9. Reviews the background to the legislation, the facts of the cases and the court's conclusions on the function of the sui generis right, the definition of a database, the criteria required for the purposes of protection, including the need to demonstrate substantial investment in obtaining and verifying data, and the position concerning extraction and re-utilisation of data.In November 2004, the Court of Justice gave its ruling in four related cases involving interpretation of the scope of the sui generis right introduced by Database Directive 96/9 to protect investment in making databases. The Court has in some respects construed the scope of the right broadly (definition of subject-matter and rights) and in others restrictively (protection requirement and infringement test). The most important aspect of the Court's ruling is that investment in creation of data does not trigger the sui generis right. Thus many databases consisting of created data (for example television listings, event data including sports fixtures, timetables, stock exchange data etc.) will generally remain unprotected. The decision is to be welcomed: it attempts to achieve a better balance between database producers' rights and public access to information by restricting the scope of the sui generis right, which had been criticised as being one of the most protective intellectual property rights on one of the least deserving subject-matters.
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