Impacts on EU Derived Database Rights

This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.

Database Right is one of the most important and valuable intellectual property rights in the digital economy.

In simple terms, it is the right for an owner of a database to prevent someone extracting or reusing data that is compiled within the database without permission. It is quite separate from any copyright that may exist in the structure of a database.

So what will happen to European derived Database Right when the UK leaves the EU? Today, March 28 2018, the European Commission published a notice to stakeholders regarding the impacts on certain copyright laws of Brexit, and the notice also covers database right.

A lot of the attention generated by the notice may centre around other topics that consumers directly feel - for example, persons residing in the United Kingdom will no longer benefit from their digital content subscriptions when travelling to the EU.  Whilst this and the other impacts are very important, any changes in relation to database right could also be commercially very significant, especially if your business model is based on the collection and resale of data.

According to the notice as of the withdrawal date, United Kingdom nationals (unless they have their habitual residence in the EU) and companies/firms formed in accordance with the law of the United Kingdom will no longer be entitled to maintain or obtain a database right in respect of databases in the EU.

The UK created its own database right by a statutory instrument  in 1997 when the EU Directive was brought in under domestic legislation.  So far as we are aware, there is no intention to get rid of or amend this domestic legislation as part of the Great Repeal Bill. So for UK database makers there should be no immediate need to panic.

On the flip side of the same coin, EU Member States' nationals and companies/firms will not be entitled to maintain or obtain a database right in respect of databases made or maintained in the United Kingdom.

The language of this notice will no doubt be pored over and possibly clarified in the coming weeks and months.  It's not a lengthy document , but lawyers will be lawyers and we can't resist looking at what words mean.  For example, the notice says "no longer be entitled to maintain or obtain a database right".  Clearly the word "obtain" means that you won't get an EU legislation derived brand new database right recognised in the EU for UK nationals etc and companies/firms formed in accordance with the law of the United Kingdom in the UK after the withdrawal date (i.e. in a year's time).   

But what about the word "maintain"?  It was thought that existing databases would survive until the database rights ran out.  Database right lasts for either 15 years from the end of the year in which the making of the database was completed or, if it was published during that period, 15 years from the end of the year in which the database was first made available to the public.

Does the word "maintain" refer to the concept within the database right legislation that successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, can start time running afresh and in effect create a new database right of 15 years? Alternatively (and more concerning), could it mean "you will not be entitled to keep" an existing right?

There is a little footnote in the EU notice that says "For databases protected before the withdrawal date, the EU is trying to agree solutions with the United Kingdom in the withdrawal agreement."

So if you are a business that operates in the UK and the EU and you are relying on database right you should follow this story closely, as clarity hopefully emerges. You may also need to look long and hard at your current business model and possibly where you physically "make" your databases and/or verify the contents.  It might be for contingency planning you consider whether to establish operations in the EU to make databases in the EU, and if you are an EU business with significant commercial interests in the UK the converse applies.