A recent High Court judgment clarified that database rights can subsist in a PDF and provides guidance about what to consider when assessing whether database rights subsist in such a case.
The claimant, Technomed, had supplied Bluecrest, one of the defendants, with its electrocardiogram analysis and reporting system, "ECG Cloud". This system relies on an underlying database containing classifications of various physical characteristics and how these manifest for screening patients and producing reports for cardiologists to use. Technomed claimed that Bluecrest had infringed its database rights and copyright when Bluecrest sent Express, its new supplier and the second defendant, a PDF version of the database. Express used this PDF to develop its own similar system.
David Stone, sitting as a Deputy High Court Judge, held amongst other findings that the PDF was a database, database rights subsisted and on the facts Bluecrest and Express had infringed those rights based on the following analysis:
- This PDF was a database because the use to which it could be put was "no different to a telephone book or list of football fixtures…clearly the contents of the PDF can be accessed, either through electronic conversion, through digital character recognition, or old-fashioned reading or re-typing". A further persuasive factor was that the defendants had used the PDF as a database: as well as copying it, they had accessed the contents of the database electronically.
- Database right subsisted in the PDF because, in compiling the database, Technomed made a qualitatively substantial investment in obtaining, verifying and presenting the relevant data. This therefore satisfied the requirements set out under the Database Directive to qualify for protection.
PDFs will not always qualify as a database: this PDF did qualify because the defendants used it as a database and because the database had the necessary elements to qualify for protection. In future cases, it will be necessary to consider the database in question and its use on a case by case basis to determine whether database rights subsist and are infringed. However, defendants could now face an uphill battle if they attempt to argue that something is not a database merely because it is in a PDF form. This seems a sensible decision in line with the policy of the Database Directive – to protect the underlying investment in the creation of a database.
With thanks to trainee, Caroline Ellard, co-author of this article.