2009 Database ownership

Copyright

5- The starting point is section 3 of the Copyright Designs and Patents Act 1988 (as amended) which provides as follows (and has done at all material times):
'3 Literary, dramatic and musical works
(1) In this Part—
"literary work" means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—
(a) a table or compilation, and
(b) a computer program;
….
(2) Copyright does not subsist in a literary, …. work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.
(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.

6 - Section 3(2) embodies the important concept of fixation. The principle of fixation is of general application and is referred to in both the Berne Convention and in the Rome Convention. However, as is clearly explained in the 18th Edition of Copinger and Skone James on Copyright at 3-36 and 3-161, it is necessary to address the 'not very different' EU requirement of sufficient identifiability, as specified by the CJEU in Case C-310/17 Levola Hengelo BV v Smilde Foods BV

EU:C:2018:899. In that case (which was concerned with a copyright alleged to subsist in the taste of a spreadable dip containing cream cheese and fresh herbs), the CJEU ruled that for subject matter to be classified as a 'work' within the meaning of the InfoSoc Directive, two cumulative conditions must be satisfied. First, that the subject matter is original in the sense that it is the author's own intellectual creation and second, only something which is the expression of the author's own intellectual creation may be classified as a 'work'. In [40]-[41], the CJEU explained:

'40 Accordingly, for there to be a 'work' as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.

41 That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.'

IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES INTELLECTUAL PROPERTY LIST (ChD)

Rolls Building, Fetter Lane
London, EC4A 1NL
7th February 2023

https://www.bailii.org/ew/cases/EWHC/Ch/2023/222.html

54 viewsRamon Quesada., edited 12:39