National Portrait Gallery: is there a database right?

I have already written about the National Portrait Gallery's legal threat against Mr Coetzee, an editor of wikipedia. I considered only the validity of the gallery's copyright claim. What about its claim that Mr Coetzee infringed the gallery's database right?

The database right is a based on the EC Directive 96/9/EC, transposed into English law by the Copyright and Rights in Databases Regulations 1997.

The directive defines a "database" as:

a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means

That's a pretty broad definition and covers anything you might think of as a "database". The photographs of paintings are independent works (even if they are not subject to copyright protection) and the gallery seem to have arranged them in a systematic way so that they are accessible by electronic means. That just tells us what a "database" is. In order to obtain the protection of the database right, the maker of the database must show:

that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database

That is actually 6 different conditions, all neatly packed up in the compression system that is legal drafting. First the maker of the database must show that there has been some substantial investment, which can be of two kinds, either quantitative or qualitative; and second that investment can be in one of three things: obtaining, verification or presentation.

What sort of investment counts? Here the decision of the European Court of Justice in Fixtures Marketing v OPAP C-444/02 comes into play. The top divisions in English and Scottish football drew up fixture lists for the matches to be played in the various divisions during each season. Fixtures Marketing Limited had been assigned the rights to manage this information outside the United Kingdom. OPAP repeatedly extracted the names of pairs of football teams playing against each other and displayed them on its website. Fixture Marketing were obviously unhappy about this and sued. The question of what was a database and how was it infringed was referred to the European Court of Justice.

The court held that "investment in ... the obtaining ... of the contents" referred to resources used to seek out independent materials that already existed and to collect them into the database and not the resources used to create the independent materials in the first place. The purpose of the database right was (thought the court) not to protect the creation of materials that went into the database but to protect the creation of the storage and processing systems for the database.

As support for this view the court pointed out that recital 19 of the directive states that the compilation of several recordings of musical performances on a CD does not represent a substantial enough investment to be eligible. The investment in the music is not enough.

The relevance of this case to the NPG is obvious. One suspects a great deal of the investment in creating the photograph database was in taking and making the photographs. That, on the authority of Fixtures Marketing is irrelevant.

As for verification and presentation, the court seems to have required that any investment that forms a part of the creation of the independent materials would also have to be disregarded. For example, on verification the court said:

The professional football leagues do not need to put any particular effort into monitoring the accuracy of the data on league matches when the list is made up because those leagues are directly involved in the creation of those data. The verification of the accuracy of the contents of fixture lists during the season simply involves, according to the observations made by Fixtures, adapting certain data in those lists to take account of any postponement of a match or fixture date decided on by or in collaboration with the leagues. Such verification cannot be regarded as requiring substantial investment.

Of course I have no idea exactly what work went in to the NPG's database, but I think it is here that they come unstuck. In their letter to Mr Coetze the gallery's solicitors use the time honoured tactic of proof by assertion:

Our client’s website includes a searchable database of over 60,000 carefully chosen, curated and watermarked images. There can therefore be no doubt that our client’s database of images is a “database” for the purposes of s.3(A)(1) of the CDPA.

If, as seems to be the case, the gallery had set aside funds to digitise its collection, those funds and the investment they represent would have to be ignored. The "carefully chosen" images would be just those images that the gallery had chosen to digitise, creating a database from that collection would not necessarily represent the substantial investment the directive envisages. I have no idea whether the "curated" refers to the paintings (in which case it is irrelevant) or the images (in which case I don't know what curating a digital image might mean). The watermarking would surely form a part of the gallery's effort in creating the digital images in the first place and also have to be disregarded.

There's too little information to be able to assess how good the gallery's claim might be, but whether they have a database right at all is open to some considerable doubt.