Case Nos: IL-2023-000080 and IL-2024-000038 - [2025] EWHC 2561 (Ch)

Fecha: 10-Oct-2025

Subsistence

Subsistence

39.

Reg.13 of the Database Regulations, taken from art.7(1) of the Directive, provides, so far as is relevant:

‘13. (1) A property right (“database right”) subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database.

(2)

For the purposes of paragraph (1) it is immaterial whether or not the database or any of its contents is a copyright work, within the meaning of Part I of the 1988 Act.’

40.

Art.7(1) states that the substantial investment may be quantitative or qualitative.

41.

Reg.12 of the Database Regulations explains what is meant by ‘substantial investment’:

‘“investment” includes any investment, whether of financial, human or technical resources;

…

“substantial”, in relation to any investment, extraction or re-utilisation, means substantial in terms of quantity or quality or a combination of both.’

42.

The CJEU provided guidance with regard to the meaning of ‘obtaining’, ‘verifying’ and ‘presenting’ in CV Online Latvia SIA v Melons SIA (C-762/19) EU:C:2021:434. This was decided after IP completion day (31 December 2020) but as noted above, English courts may have regard to such decisions for events occurring before the end of 2023, all the more so here since the relevant passage of the judgment draws from CJEU judgments delivered before IP completion day:

‘[25] In accordance with the court’s settled case law, investment in the obtaining of the contents of a database concerns the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials (British Horseracing Board Ltd v William Hill Organisation Ltd (Case C-203/02) [2009] Bus LR 932; [2004] ECR I-10415, para 31 and Fixtures Marketing Ltd v Svenska Spel AB (Case C-338/02) [2004] ECR I-10497, para 24).

[26] Next, the concept of an investment in the veriﬁcation of the contents of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation (British Horseracing Board Ltd, para 34).

[27] Lastly, investment in the presentation of the contents of the database includes the means of giving that database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility (Fixtures Marketing Ltd v Svenska Spel AB [2004] ECR I-10497, para 27; Fixtures Marketing Ltd v Organismos Prognostikon Agonon Podosfairou (OPAP) (Case C-444/02) [2004] ECR I-10549, para 43 and Fixtures Marketing Ltd v Oy Veikkaus AB (Case C-46/02) [2004] ECR I-10365, para 37).’

43.

As appears from paragraph 25 of the CJEU’s judgment, investment in the creation of materials is not protected by a database right, as opposed to investment in seeking out materials and collecting them into a database, which is. ‘Creation’ means creating the materials obtained and assembled into a database, not creating the data. To give an example, data may be created by measuring natural phenomena such as successive air temperatures over a given period. In that instance the materials would be the temperatures. Any amount of investment in heating or cooling to create the temperatures would not be protected. Substantial investment in assembling a database of the temperatures, on the other hand, would qualify for protection. See also Football Dataco Ltd v Britten Pools Ltd [2013] EWCA Civ 27, at [35]-[49]. Separately, investment in verification of the temperatures and in the presentation of the contents of the data setting out the temperatures, would each be protected.

44.

Reg.17(1) of the Database Regulations states that a database right subsists until the end of the period of 15 years from the end of the calendar year in which the making of the database was completed.

45.

Reg.17(3) states:

‘(3) Any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment shall qualify the database resulting from that investment for its own term of protection.’

46.

This implements art.10(3) of the Directive. Art.10(3) itself indicates that the substantial change to the contents of the database may be qualitative or quantitative.

47.

In the case of a dynamic or ‘rolling’ database, i.e. one which is constantly updated, the correct analysis seems to be that there is always a single database which, taken at the stage of any substantial change within the meaning of reg.17(3), is the database at that point, with the 15 years of protection accordingly. In British Horseracing Board Ltd v William Hill Organisation Ltd (Case C-203/02) EU:C:2004:695 (‘BHB’) the CJEU declined to consider this approach but Advocate-General Stix-Hackl said:

‘[148] It is characteristic of dynamic databases that there is only ever one database, namely the most recent. Previous versions “disappear”. That raises the question of what the new term of protection covers, in other words, what the object of protection, that is to say, the new one, is.

[149] The point of departure must be the objective of the changes, which is to bring the database up to date. That means that the whole database is the object of the new investment. Thus, the most recent version, that is to say, the whole database, is always the object of protection.’