Genealogy and The British Horseracing Board Ltd and Others v William Hill Organization Ltd.

I recently wrote about the status of copyright law as it was applied in the U.K. to databases. My post was really about the application of copyright law to facts, but the discussion turned around the issue of the application of the law to database. The law known as Copyright and Rights in Databases Regulations 1997 (the "Regulations") was extraordinarily vague and just as broad in its scope. In my opinion, after reading through the law as passed, it would only be a matter of time before the law was challenged in court. I was right because there was case called The British Horseracing Board Ltd and Others v William Hill Organization Ltd. that severely limited the application of the statute. 

The reason this issue came up is because of a claim by a reader of my blog that the U.K. statute established that facts were covered by the copyright law. Of course, if this were true, it would be very significant for those who claim that their "genealogy had been stolen" by someone or some entity. My opinion in the earlier post was that there was little possibility of a genealogical breach of copyright case ever coming before the U.K. or E.U. courts for the same reasons that there have yet to be any genealogically inspired family tree copyright cases in the United States. In my opinion, the main reason is that no one can show damages statutory or actual.

I indicated at the time I wrote the first blog post that I would be turning my attention to the law case. So here are my thoughts on the case. The opinion in the case is 42 pages long, which in my experience, is a little longer than many but not as long as some. In order to understand the impact of the decision in the case, it is necessary to have a copy of the legislation along side the opinion because the judge in writing the opinion only makes notes on the original legislation and does proceed in a narrative fashion as is common in the United States. It is also important to first read the Judgment in the case to understand the opinion. Here is the explanation of the case from the Judgement:

This reference for a preliminary ruling concerns the interpretation of Article 7 and Article 10(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20, 'the directive'). 

The reference was made in the course of proceedings brought by The British Horseracing Board Ltd, the Jockey Club and Weatherbys Group Ltd ('the BHB and Others') against William Hill Organization Ltd ('William Hill'). The litigation arose over the use by William Hill, for the purpose of organising betting on horse racing, of information taken from the BHB database.

Let's just say the ruling is rather complicated but it would seem from the Court's ruling that the possibility of the law being extended to a privately compiled family tree is slim to none. The database in question in the lawsuit is further described as follows:

The BHB database contains essential information not only for those directly involved in horse racing but also for radio and television broadcasters and for bookmakers and their clients. The cost of running the BHB database is approximately £4 million per annum. The fees charged to third parties for the use of the information in the database cover about a quarter of that amount.

After reading the case and examining the statute (legislation, law whatever), I believe even more firmly that a privately compiled database such as a genealogical family tree, that was compiled from sources readily available to the public would not be covered by the law. One of the main differences between the genealogical case and the one decided by the court is that relatives have the same relationship to the data (family tree), If genealogical family trees could be copyrighted, then the first person to do the research would have an absolute right to prevent anyone else related to the same people from using that database. But then how would you prove that I copied your database if I independently did the research and came up with exactly the same tree except for those people who were not mutual relatives? Ultimately, how is anyone harmed when someone else is proven to be a relative in a family tree?

Oh, about the issue of facts being protected, the court rules as follows:

Against that background, the expression 'investment in ... the obtaining ... of the contents' of a database must, as William Hill and the Belgian, German and Portuguese Governments point out, be understood to refer to 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. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.

Here the term "creation of materials" refers to the gathering of facts. The ruling very arguably states that facts are not covered by the statute.

It is also apparent from the Judgment, that the objective of the Court was to protect the economic interests of the maker of the database. It further appears that the maker of the database has to take some steps to benefit monetarily from the creation, correction and maintenance of the database.  This is stated in the Judgment as follows:

Of course, the maker of a database can reserve exclusive access to his database to himself or reserve access to specific people. However, if he himself makes the contents of his database or a part of it accessible to the public, his sui generis right does not allow him to prevent third parties from consulting that base.

 It appears to me that the case turns on the issue of whether or not the maker of the database is harmed by failing to recoup the investment made in the database. Unless a genealogist could prove that they undertook the research in creating their family tree for the express purpose of making money on the project, I doubt that any court would impose sanctions under the statute.

It would be interesting to see if there have been any subsequent cases regarding this statute.