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On 13 July, the Court of Appeal ruled in BHB v William Hill, the long-awaited UK case applying the European database right. The judgment, which is the result of an appeal from Justice Laddie’s decision in the Chancery Division of the High Court, applied the findings of the European Court of Justice regarding the interpretation of the database right. The result was that the BHB database was ruled as not falling within the scope of the law’s protection, as it was not the result of a “substantial investment” in either the obtaining, verification, or presentation of the contents of the database, as required by Article 7(1) of Directive 96/9.

This case arose from the British Horseracing Board’s 2000 claim that bookmaker William Hill was using BHB’s racing and horse registration data for the purse of organising its online horse racing betting service. BHB’s database consisted of the following information, which was updated daily: the names of all the horses in a race; the date, time, and place of the race; and the name of the racecourse where the race was to be held. BHB brought proceedings in the High Court, alleging that William Hill’s use of the racing data, taken from its published form in newspapers and from a subscription data feed, was an “extraction or re-utilisation of a substantial part” of the contents of the BHB database, in violation of the sui generis database right.

The Court of Appeal referred a number of questions of EU law relating to the Directive to the European Court of Justice. The ECJ’s decision was unusual, in that it applied its interpretation of the law to the facts of the case, rather than leaving that application to the Court of Appeal. (While BHB argued that the ECJ had exceeded its jurisdiction, the Court of Appeal accepted its conclusions on the facts of the case.) The ECJ concluded that BHB had no valid database right in its collection of pre-race data, as it had not made a sufficient substantial investment beyond the investment made in each of the parts of the database. BHB’s investment was in the creation of the database, and not in the obtaining, verification, or presentation of the data as required by the Directive. While effort and investment certainly went into BHB’s creation of the lists, which became part of the database in question, the investment was in the creation of data itself, and not in the verification of that data.

An important implication of this decision would seem to be that if a business gathers data in the ordinary course of business, and publishes a database of that information as an activity ancillary to its main business, the Database Directive cannot be used to protect the value of that original process of gathering information. The database right contained in the Directive focuses on efforts relating to the database–primarily if not solely.