Database right and the NPG threat

The National Portrait Gallery’s legal threat against Wikimedian Derrick Coetzee alleges four things:

  1. Copyright infringement
  2. Database right infringement
  3. Unlawful circumvention of technical measures
  4. Breach of contract

The copyright issue, of course, is the center of the dispute. UK law is unsettled on whether mechanical reproduction of a public domain work is eligible for copyright.

IANAL, but breach of contract and unlawful circumvention both seem moot if there is no copyright infringement. A bit of text at the bottom of page (with no mechanism for the user to acknowledge or refuse) setting restrictive use terms for something that is public domain wouldn’t hold much weight. Likewise, even apart from the fact that Zoomify is not a security measure and arguably was not “circumvented”, if the images are public domain then simply collecting and stitching together tiles from those images (whether automatically or by hand) is perfectly legitimate.

Database right, therefore, is the only thing does not turn on whether ‘sweat of the brow’ copyrights hold up. The law here seems vague, but again, IANAL. The key question is what constitutes a “substantial part” of the contents of the NPG’s database. If the paintings themselves are public domain, then the mere unorganized collection of them ought not infringe on the database right, but depending on how much metadata and categorization comes from the same database, porting images to Wikimedia Commons might cross the line. For the images at hand, it looks like the amount of metadata is modest: subject, author, date, and author’s date of death. The NPG database contains significantly more information: medium, size, provenance, and other contextual information, as well as links to related works and people. It is also possible that Coetzee’s actions fall under the “exceptions to database right“:

(1) Database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if –

43 thoughts on “Database right and the NPG threat”

  1. The difficulty with database right is that it is fairly new law – especially when compared to copyright – less than 15 years old.

    However, the European Court of Justice has added a bit of flesh onto the bare terms of the Directive in a series of four cases decided in November 2004.

    In Fixtures Marketing Ltd. v. Oy Veikkaus (Case C-46/02), the ECJ stated "the expression ‘investment in … the obtaining … of the contents’ of a database must […] 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." (para. 34) The NPG may have put a fair amount of effort into creating the digitized images, but this is irrelevant for its database rights. On the other hand, a project such as Wikimedia Commons would be able to claim database rights (if it were based in the EU), because the Wikimedia effort is in finding, verifying and categorizing the images.

    The approach was confirmed in British Horseracing Board v. William Hill (Case C-203/02), which also looked at the definition of 'substantial proportion". The ECJ held that 'substantial' in the sense of the Directive refers to 'investment' protected by database right, not to the database as a whole if some parts are unprotected: "Consequently, and if […] the materials extracted and re-utilised by William Hill did not require BHB and Others to put in investment independent of the resources required for their creation, it must be held that those materials do not represent a substantial part, in qualitative terms, of the BHB database." (para. 80) In this British case, the cost of running the BHB database was put at £4 million a year, but the ECJ ruled that the parts extracted by William Hill (a betting firm) could not be protected because they had been created by the BHB (lists of runners in horse races). The BHB had been hoping for income of more than £100 million a year from licensing its data (see here, page 15)

    The other two cases – Fixtures Marketing Ltd. v. Svenska Spel AB (Case C-338/02) and Fixtures Marketing Ltd. v. Organismos prognostikon agonon podosfairou AE (OPAP) (Case C-444/02) – concern the rights to the fixtures list of the English and Scottish soccer leagues. Again, the ECJ ruled that there was no database right: "Obtaining the contents of a football fixture list thus does not require any investment independent of that required for the creation of the data contained in that list." (Svenska Spel, para. 33).

    The material extracted by Derrick Coetzee is not protected by database right because it was created by the NPG itself rather than being collected, verified and catalogued from third party sources. "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." (OPAP, para. 40)
    As the material cannot support database rights, it must form an insubstantial part of the database: hence, as the database has been made available to the public, anyone can 'extract' it.

  2. Thanks! That's very enlightening, and at the same time even more confusing.

    So it seems like the NPG does have database right (it collected information about each painting, likely often from third party sources, and the info is independent of the painting/photograph itself), but Coetzee only imported aspects that would not qualify for database right.

  3. Hey, don't give ammunition to the enemy! Only kidding, the four cases I cited are out of only five which have been decided by the European Court of Justice on this particular law, which is notoriously difficult to apply in practice (see the report from the European Commission which I linked in my previous post).

    If the NPG were arguing that they had a database right because of any metadata, they would have a stronger case (as you point out) but they still wouldn't be on firm ground. It would inevitably mean the case going to the ECJ, with all the extra out-of-pocket costs for both sides that that would involve. How the ECJ would decide it is anyone's guess…

    A good reason for negotiating, but without rolling over.

  4. For a more optimistic PoV, if the NPG were to claim for database rights based only on the metadata, they would be effectively renouncing their copyright / database right claims to images themselves… which would be a victory for our stance.

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