Don’t underestimate the importance of a company’s statutory registers
Kirsty Bowyer | 19.11.2019
29.11.2017 John Warchus
Databases can be protected by database right and/or copyright. A recent spat between the supplier of an internet-based electrocardiogram (ECG) reporting system known as the “ECG Cloud” has led to the conclusion that a simple PDF document relating to the ECG Cloud was protected by both database right and copyright.
Technomed supplied Bluecrest Health Screening with a PDF relating to their ECG Cloud product which enabled ECG readings to be analysed remotely by a qualified specialist who could review patient data and select a classification from a range of options made available by the system. The system produced an Extensible Mark-up Language (XML) file with a standardised XML format. The XML file was used to generate a report for the patient or specialist. The parties fell out commercially and Bluecrest obtained its heart screening services from a competitor of Technomed (Express), providing Express with a copy of the PDF and explanatory documents relating to ECG Cloud. Technomed claimed that its database right and copyright had been infringed.
The court decided that the static PDF document was protected by database right: it satisfied the definition of a database and that it was a collection of independent works arranged in a systematic way which could be accessed individually by electronic or more traditional means, which included reading. There had clearly been investment in the creation of the database which was essential for the database right to arise.
The court further held that the PDF document also enjoyed copyright protection as the selection and arrangement of information demonstrated sufficient intellectual creation by Technomed.
The court also decided that Technomed enjoyed copyright in the XML format used – copyright existed because the XML format contained content revealing the intellectual creation of its author and it was not just a pre-determined structure determined by the XML programming language.
This decision is a reminder that there are important economic benefits if a party can show that it owns a database right and/or copyright in a database.
While most people link database right to large, complex electronic databases, the wide legal definition of database and the fact that access can be by traditional means (i.e. reading) means that lists and documents can enjoy this protection. Being low-tech is no bar to qualifying for the database right.
As a result of the relatively new database right, copyright protection for databases now requires a higher degree of originality than is normally the case for copyright protection: nonetheless, in this instance the court was convinced that the selection and arrangement of information displayed sufficient intellectual creation by Technomed and so qualified for copyright protection. Copying of the PDF by Express therefore amounted to infringement of database right and copyright.
It should also be noted that copyright existed in the considerable explanatory materials supplied by Technomed to Bluecrest Health Screening, and infringement (with a right to damages) occurred when they were copied by Express.
Finally, the ruling shows the potential for infringing another party’s intellectual property (and so becoming liable to damages) when a business relationship breaks down with no ongoing contractual right to use the intellectual property – as far as possible, some form of licence/permission should be obtained from the IP owner, if only for a limited period.
A simple list or document can enjoy database right and copyright protection
Pre-condition for database right is showing that significant investment has taken place
Copyright protection of a database does not automatically arise because it satisfies the database right
Explanatory materials likely to have copyright protection too if they display some intellectual creation by the author
Secure rights to continue to be able to use intellectual property rights if a supply agreement ends.