Brexit & Database right

The EU Database Directive was implemented in the UK by a statutory instrument known as the Database Regulations, which came into force on 1 January 1998. The Regulations introduced a standalone database right which, in broad terms, protects the compilation of information comprising a database.  So database right is essentially a European right.

Database right will only subsist in a database if, amongst other things, at the time the database was made, its maker (the person who takes the initiative in obtaining, verifying or presenting the contents of the database and assumes the risk of investing in those acts) was: (1) an individual who is an national of or habitually resident in the EEA (the European Economic Area, which includes the EU); or (2) a company incorporated, or an unincorporated body formed, under the law of an EEA state which has its central administration, principal place of business or registered office (provided there is an ongoing link to the economy of an EEA state) within the EEA.

Post withdrawal from the EU, this would obviously present a problem for makers of databases who are UK nationals, residents, companies or firms because they will no longer meet the qualifying requirements for database right protection.  Unless the law is changed, UK database rights will only be available to non-UK nationals and companies!  However, it is envisaged by the UK’s proposed EU Withdrawal Bill that all EU laws in effect on the day before Brexit will be incorporated into UK law on Brexit.  The Bill also intends to give the UK government powers to amend UK law to fill in any “gaps” created by Brexit.  Therefore it seems likely that the UK will provide specific domestic law protection for databases made by UK nationals, residents, companies and firms which will offer the same (or very similar) scope of protection as currently provided for by database right.  Of course, if the UK negotiates membership of the EEA once it has left the EU, this may not be necessary – but it is too early to say whether this is a possibility.

Assuming the UK will provide equivalent domestic law protection for databases, UK courts will no longer be bound by CJEU decisions concerning the Database Directive (or otherwise) post Brexit.  However, they are likely to remain guided and persuaded by such decisions, particularly as few cases on database right reach trial in the UK.

If the UK does leave the EEA on Brexit, one consequence for database rights is that, as things currently stand, UK-created databases will no longer qualify for database right protection in the remainder of the EEA/EU.  UK individuals and companies would then need to rely on other intellectual property rights to protect their creations.

It should be noted in this regard that database right is separate from copyright in a database.  Broadly, copyright protection (for databases) protects the structure of the database (as opposed to the compilation of information comprising the database).  Post withdrawal from the EU, it is unlikely there will be any substantive changes to UK copyright law because, although compliant with various EU Directives and Regulations, copyright is largely a national right.  Therefore, the scope and extent of copyright protection for databases post Brexit will likely remain unchanged.  More information on the impact of Brexit on copyright can be found here.

If you have any questions regarding the impact of Brexit on your intellectual property rights, please contact your usual Marks & Clerk advisor or, alternatively, you can direct your question to the chair of our Brexit committee, Graham Burnett-Hall.

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