The Law Commission of England & Wales is a statutory independent body with a role of keeping English and Welsh law under review and recommending reforms. Every few years it asks for submissions for its programme of work. This is a submission suggesting the topic of database rights for their 14th programme of work.
Database rights is a topic that feels like it regularly comes up as an issue on problems that I care about. Perhaps it is something the Law Commission will pick up.
The submission is structured as required by the Law Commission. I’ve tidied up a couple bits of grammar, but left the rest as per the submission. I took some inspiration from the the Legal Education Foundation’s excellent submission on automated and assisted decision making by public sector bodies and the debate over amendments to database rights that is occurring in the European Commission. Thank you to those organisations for sharing their work openly.
In general terms, what is the problem that requires reform?
Sui generis database rights were created in the 1996 EU directive on the legal protection of databases and implemented in the UK through the 1997 Copyright and Rights in Databases Regulations. This was intended to incentivise database owners to invest in maintaining databases.
It is unclear whether database rights have delivered on their original intention and areas of the rights lack clarity. It is possible that the net result has been reduced investment in databases with a corresponding reduction in productive activity.
Looking to the future, the EU-UK withdrawal agreement has removed reciprocal recognition for new database rights. This will reduce the benefits received by UK database owners. Meanwhile changing models of technology development and successive government’s policy objectives to increase access to and use of data are challenging the appropriateness of database rights as they were originally designed.
To help deliver on the intended objective database rights should be reassessed through three lenses:
- the UK leaving the EU
- emerging technology
- simplification of the law
Can you give us an example of what happens in practice?
Terms in the regulation, such as “substantial investment”, are weakly defined so it can be unclear which databases receive their protection. This can cause uncertainty for both database owners and database users about whether a particular database is protected. Database owners who desire protection can expend unnecessary effort creating additional legal and/or technical measures. Database users can choose not to use data that they are legally allowed to due to either their own uncertainty or because of legal threats by database owners who may not have database rights. This reduces useful innovation activity and can limit freedom of expression.
Database rights can generate conflict with other policy initiatives such as open science and public sector open data. It is unclear which of the open datasets produced by these initiatives contain database rights that their owners want to protect, and it can be unclear what activities can be undertaken using these open datasets without causing any new database to also contain database rights. As with the lack of legal clarity this limits reuse and reduces the impact of these initiatives. A specific example that is regularly discussed within the UK data community, and which I have worked on, is address data.
There have been technological changes since database rights were introduced. For example, the growing proliferation of sensors or the increased use of collaborative maintenance techniques in developing services such as TripAdvisor, Facebook, Waze and OpenStreetMap. Database rights were not designed to support these changes leading to further grey areas where it is not clear what legal protections and rights exist for each stakeholder. This will lead to the loss of useful innovation and contribute to what is increasingly perceived as an unfair balance of rights and interests between data subjects, data contributors, database owners, data reusers and beneficiaries.
It is too early to provide an example of how the lack of reciprocal recognition of new database rights between the EU and UK will cause problems in practice. It is possible that organisations will be unaware of this lack of reciprocity which may cause them unexpected losses or additional legal costs.
To which areas of the law does the problem relate?
The issue is located within intellectual property law but has overlaps with other areas such as data protection, reuse of public sector information, and competition law.
Can you give us information about how the problem is approached in other legal systems?
Database rights are unique to the EU, and now to the EU and UK. No other country has introduced sui generis database rights since their introduction in 1996/7. This is an indicator for how other countries may have assessed the effectiveness of database rights. Instead other copyright and competition mechanisms are used to deliver on the same objectives.
In 2018 the European Commission published an evaluation of database rights and is currently considering amendments with a particular focus on updating database rights to meet the challenges of technological change.
Within the United Kingdom, does the problem occur in any or all of England, Wales, Scotland or Northern Ireland?
What do you think needs to be done to resolve the problem?
An evaluation of database rights to help understand whether and how it has incentivised investment in databases within the UK.
An assessment of the future needs for database rights given the UK’s current legal and policy context along with expected changes enabled by technological development.
This evaluation of past performance and assessment of future needs may lead to recommendations to change legislation.
What is the scale of the problem?
Organisations are increasingly using data, along with other things, to inform decisions, perform research, build new products and deliver services.
Significant areas of government policy such as the national data strategy and AI strategy intend to increase the pace of this trend. Due to this the problems that exist with the current legislation will increase.
What would be the positive benefits of reform?
The benefits could be numerous and felt by a diverse range of actors from journalists using public sector open data to report on public policy, startups using a mix of sensors and existing databases to create new services, or increased investment in databases by businesses.
These benefits will translate into supporting technological and digital development, reduced legal costs, fairness in rights over data, and simplification of current law.
If this area of the law is reformed, can you identify what the costs or other negative impacts of reform might be?
Undesirable negative impacts are likely to be limited to large, existing businesses that rely on database rights to justify investment in databases that support their services. These needs should be captured in the proposed evaluation exercise and addressed in the future-looking assessment.
Does the problem adversely impact equality, diversity and inclusion by affecting certain groups in society, or particular areas of the country more than others? If so, what are those groups and areas?
In your view, why is the independent, non-political, Law Commission the appropriate body to undertake this work, as opposed to, for example, a Government department, Parliamentary committee, or a non-Governmental organisation?
The problems generated by database rights are not an area of political contention. There is cross-party support for technological change and simplifying existing law.
The Law Commission are ideally placed to consider the interests of a range of stakeholders and make recommendations that strike a fair balance.
Have you been in touch with any part of the Government (either central or local) about this problem? What did they say?
Is any other organisation such as the Government or a non- Governmental group currently considering this problem? Have they considered it recently?
The European Commission are currently considering the problem. The recent evaluation published by the European Commission included an annex with country-level findings with the UK as one of the highlighted countries. The Law Commission could draw on this work in their own considerations.
No UK organisation is currently known to be considering database rights or to have considered it recently.