| Commentary

207 Development in database right

| Commentary

207 Development in database right

The case of British Horseracing Board Ltd v William Hill Organisation Ltd1 (‘BHB case’), handed down on 9 November 2004, was the first to discuss in detail the extent of database rights. The case originally started in the English courts2 before being referred by the Court of Appeal to the ECJ. At all stages of the proceedings the courts used EC Council Directive 96/9 rather than the provisions of the Copyright and Rights in Databases Regulations 1997. The key article in EC Council Directive 96/9 is art 7(1) which provides:

‘Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.’

The ECJ held that the phrase ‘investment in ... the obtaining ... of the contents’ was a reference to ‘the resources used to seek out existing, independent materials and collect them in the database’, and did not include the resources used to create

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