That part of the decision dealt with whether a website provider could be liable for breach of database protection by providing a link which, if accessed, would necessarily result in infringement. The English Court of Appeal found that there would be liability for such a person in that scenario.

Stan James (bookmakers) are website providers whose website allowed users to access an entire database of information which neither the users nor Stan James had a right to access.  On the Stan James website, there was links for “Live Scores” which, if clicked, downloaded an entire database on European football (compiled by FDC) onto a user’s computer.  Though the information was downloaded in an encrypted form, a user could decrypt individual data sets through subsequent links on the Stan James website.  This type of download was found to be infringement.  The court also found that when infringement necessarily occurs as a result of a user clicking a link on a website both the user and the website provider will be liable for infringement.

The court came to this judgment by drawing a distinction between websites that might infringe database rights and websites which will necessarily infringe rights if used in the standard way.  For example, the Justice used the example of someone using a website such as EBay to link to protected materials and distinguished that at law from the nature of the Stan James website.  Individual users of EBay might use the website in order to violate protections on databases or infringe copyright.  Therefore, the EBay website provider is not directly responsible for what user’s might use their website for.  In the case of the Stan James website, it was the website provider themselves who was supplying links to infringing materials.  It was also important that Stan James was regarded in the case as a primary infringer rather than a secondary one.  This finding allowed the court to dismiss the defence of innocence, where Stan James argued against liability on the grounds that they were not aware the database was downloaded to the user’s computer.

The decision is important for a number of reasons.  First, it reiterates the position that a truly neutral party, who simply transfers user generated content but is unaware as to whether that content is infringement or not, is not liable for the infringement.  For example, Google would not be liable for breaches of copyright which result from Google images searches; however, the website providers hosting the infringing content would likely be held liable.  Second, it stands for the position that website providers who publish links to infringing materials are liable for infringement.  And lastly, as discussed in the case, it stands for the position that ignorance of the infringement is not a defence to primary infringement findings.

This case serves as a warning to website providers to be extremely careful when creating links to other materials.  If clicking on one of those links necessarily results in infringement, you will be liable regardless of whether you knew the information was protected or not.

A similar case regarding liability for links on a website arose in .  In that case the court suggested that posting a link to defamatory statements could be considered defamation, but only when the hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content.  With the addition of this recent case, the argument that you can be responsible for the materials that you provide links for on your website is all the more persuasive.

Findings such as these simply stand for the position that providing links to material is fundamentally the same as offering that material on your own website.  I consider that to be a reasonable thing.  There should not be a loophole in our system of law which allows you to avoid liability while at the same time benefit from legally actionable materials.  There is no doubt that Stan James benefitted from its links to football scores and other info with increased traffic to the site.  Making these people liable for breaching protected rights is simply logical.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.  

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On October 27, 2011, the High Court of Justice Chancery Division ruled in favour of British Sky Broadcasting Group PLC et al. (Sky) on a against Digital Satellite Warranty Cover Limited et al. (Defendants).

The Defendants were held liable on four separate counts of infringement, including the infringement of Sky’s database rights pursuant to Article 7 of the , [Directive] which has since been. Article 7 of the Directive allows for the protection of a database which demonstrates a “[s]ubstantial investment in either the obtaining, verification or presentation of the contents …” either qualitatively or quantitatively.

Sky, a provider of satellite broadcasting services, communications and television equipment claimed that the Defendants “extracted substantial parts” of their client databases containing information on roughly 9.7 million clients’ names, addresses, email addresses, phone numbers, equipment and installations dates. Further, Sky established that they had invested £250 million on the development of and £300 million annually to maintain and verify their client lists.

The Defendants, citing , argued that Sky’s data was created rather than obtained, verified or presented. In that case, it was held that creation of new “independent materials” – otherwise the underlying data - is not a valid subject for protection under the Directive because the “[p]urpose of the protection by the sui generis right… 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”. An individual who can show that a substantial investment “[i]ndependent of the resources used to create those materials” was made, could obtain protection. The Court held that Sky had not created new information (except for the installation date) and instead held that they “[s]imply record[ed] pre-existing information in a systematic way” and therefore qualified for protection.

In a 2005 , it was noted that the European Commission recognized that “[c]opyright protection based on the standard of “originality” alone might not be an adequate tool to protect these often considerable investments” due in part to the varying standards of originality between the Member States, and specifically between the common law and droit d’auteur jurisdictions. The Directive provides for two levels of database protection: i) copyright protection involving the intellectual effort of selection or arrangement, and ii) sui generis protection once a substantial investment is made in obtaining, verifying or presenting the data.

Databases are not protected per se via sui generis protection or explicitly in the Canadian Copyright Act. However, a database may as a ‘compilation’ – which is defined under of the Copyright Act as the arrangement or selection of data - qualify for ‘thin’ copyright protection as long as the selection or arrangement satisfies the originality standard of “skill and judgement” as enunciated in CCH Canadian Ltd v Law Society of Upper Canada. In CCH, the Supreme Court of Canada implicitly rejected the ‘sweat of the brow’ industriousness standard recognized in the United Kingdom because it “[t]ip[s] the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation”.

Similarly, a database can be protected as a ‘compilation’ under of the United States Code which defines it as “[t]he collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”.

In , the United States Supreme Court held that a phone book directory arranged in alphabetical order was missing the “[m]inimal creative spark” of originality required for copyright protection. Further, the Court held that the sweat of the brow standard had dangerous consequences, “[t]he most glaring being that it extended copyright protection in a compilation beyond selection and arrangement — the compiler’s original contributions — to the facts themselves.”

Protection in both jurisdictions exists in the arrangement or selection of the databases alone and not in the underlying data or facts, although protection for the original expression of those facts could be copyrightable.

In , , Professor at the University of Ottawa, Faculty of Law argues that databases that are created based on labour, investment, “whole of the universe”, or arranged in an obvious manner lack the requisite level of originality for protection in Canada and the United States (Scassa, 578-579). Therefore Sky’s database of names, addresses and telephone numbers would not qualify for protection in these jurisdictions based on the industriousness, ‘sweat of the brow’ standard of ‘substantial investment’ alone.

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