Investing in Databases

Abstract

The first case (British Horseracing Board v. William Hill), to be litigated in the UK under legislation created to conform with the European Directive on Database Rights is currently under appeal. This paper investigates the problems that were considered to exist in the pre-existing copyright based protection regime and how those were answered in the Directive by the creation of a new sui generis database right. It goes on to analyse the judgment in BHB to discover that the basis of database right protection lies in the investment made by the maker of the database rather than the information contained therein. The paper then goes on to consider how the protection of that ‘investment’ can be seen in various areas of the pre-existing international legal structure, usually as an aspect of competition law. An attempt is made to interpret the Database Directive along the same lines and a consideration is made of the various possible objections to this interpretation of the right. After rebutting these objections, the paper concludes that a protection very similar to copyright based protections, without reliance on copyright principles, can be offered to database right holders without at the same time restricting the use of otherwise unprotected information from the public domain.