Crossing those boundaries: Material Cultures and the Creation of Knowledge

Yesterday I had the (genuine) pleasure of spending a Sunday afternoon in the company of experts from the fields of literature, history, philosophy, publishing, cultural studies (and various combinations of these), at the University of Edinburgh's The Centre for the History of the Book's conference "Material Cultures and the Creation of Knowledge". It was fascinating to see familiar themes: creation of knowledge, its dissemination and power, potential barriers and opportunities, being considered from quite unfamiliar perspectives.

When chairing a session on censorship, however, I realised that they were not really so different. A reminder of the need for IP lawyers and researchers to look not only at other legal fields, as our project seeks to do, but to engage much more broadly with disciplines which, because of language, geography (or possibly lack of time!) might seem less relevant to our immediate focus.">

What does the future hold for databases?

The English Court of Appeal delivered its decision in British Horseracing Board v William Hill earlier this month. The long running saga relates to the extent to which database rights, stemming from an EC Directive, exist in collections by the BHB on its website of information about horses, names, races; and the extent to which such database rights are infringed by William Hill repeatedly taking some pieces of information and using them on their own website.

The decisions by the English High Court, the ECJ's Advocate General's opinion and the ECJ decision were pored over to identify whether this new right could indeed give database compilers, often large enterprises, the power to control use, by competitors and consumers, of the information in their databases. When you think about it in terms of a potential right to control means of use of the main online source of information (even if the information may also be accessible, with much greater difficulty, elsewhere), the implications of this decision go wider than racing punditry.

The ECJ's December 04 decision was received with some surprise, and relief in the camps of users. Database rights could only exist if there had been substantial investment in the compilation and verification of information for the database, rather than creating that information in the first place. In an apparent ellison of concepts, if there was no such investment in particular data, taking of that data could not then be infringement.

The Court of Appeal has now applied the ECJ decision to the facts of the case. Lord Justice Jacob held that here, the stamp of authority from the BHB by including data in the database meant that the data was in fact newly created data: as such, the database fell outside the ECJ's parameters for database rights. He declined to deconstruct the process of compiling the database (it having been argued that much of the work was compiling and checking existing data, with little creative work going on at the end), focussing on the end product.

While the decision (not yet available freely online although reported in the Weekly Law Reports) confirms the restricted nature of database rights, questions will continue and litigation and uncertainty will rage. Those seeking to use information from databases for whatever purposes will likely to do with concern - unless there is a "stamp of authority" situation. The lack of a compulsory licensing mechanism in the database legislation means that there is still scope for compilers to control data with some impunity.

You go away for 2 weeks....

and everything starts happening - ever increasing terror attacks (inevitably more conscious of them with friends and family in London), some progress in Make Poverty History, free trade agreements (US/Central America looking good for pharmas), antitrust investigations starting and ending (Intel/Nortel), "piracy" prosecutions (feel particularly sorry for the Cambridge student) and domain name disputes (well done Easy, bad luck Volvo - is it only me who thinks the decisions were the wrong way round?). As I wade through real and virtual intrays and reading piles, I'm reminded once again that our work in human rights, competition and IP, separately and in combination, is not in a theoretical vaccuum but has real life implications - and of the need to try to make our work have immediate relevance, as well as seeking to lead and influence policy and decision making in the future.