Wednesday, 27 October 2010

"Cast your seeds upon the database ..."

Which one is the seed ...?
In Beechwood House Publishing Ltd (t/a Binley's) v Guardian Products Ltd and another [2010] EWPCC 12, Judge Colin Birss QC gave judgment in a database right dispute in the Patents County Court. In an application for summary judgment, in which the defence was that the dispute had already settled, the court persuaded the parties to agree to treat the application as the trial of the settlement issue and then decided it properly, achieving a substantial saving of both time and expense.

The database in which infringement was alleged was "Binley's Database of GP Practices", which began in 1994.  This consists essentially of the names and addresses of individuals (such as nurses and doctors) associated with general medical practices. The edition allegedly infringed apparently names 159,576 individuals, located at 11,480 general practices within the UK. In pre-database right days this would have been a traditional copyright infringement claim.  Anyway, as the judge, explained:
"4 In August 2007 the claimant found clear evidence that the first defendant was using information from the claimant's database. This was because the claimant puts a few seeds in its database. The seeds are dummy entries which do not correspond to real people. They are fictitious entries with addresses corresponding to the claimant's staff. Thus the claimant will find out if someone is using data from its database because a letter will be sent to one of the seed addresses. That is what happened in this case and this action ensued.

5 The underlying facts are not in dispute. The mailing to the seed entry took place in about August 2007. The letter was sent by the first defendant. The first defendant obtained the data it used from the second defendant and the second defendant in turn obtained the data in March 2006 from an organisation called Bespoke Database Organisation Ltd ("BDOL"). The data from BDOL included the seed entry. There is no doubt that the BDOL data includes at least one entry from the claimant's database, that is the seed. There is also no doubt that BDOL used the claimant's database as one of the sources for the BDOL data. There is however an issue as to the extent of that use  ... If ... the claimant has a good claim to ownership and subsistence of database right and if ... the BDOL mailing list includes or consists of a substantial part of the claimant's database then it is not in dispute that the defendants infringed the claimant's database rights".
But what evidential value can be placed upon the fact that one or more seeds received a mailing from the defendant? Does this raise an inference of substantiality of the degree of copying? How many seeds were there in relation to the database a a whole? And suppose the defendant mailed only to seeds and not to genuine entries. Anyway, the judge addressed the seed issue thus:
"75 I am ... struck by the claimant's statement that there are "a few" seeds in the database. The claimant has not stated how many "a few" means and has so far refused to tell the defendants how many there are. No doubt that is for the claimant's own good commercial reasons. However it seems to me that one way of gauging the number of entries derived from the claimant's database might be to ask what proportion of the seed entries ended up with the defendants. Such an exercise would no doubt have to be treated with caution but it at least might shed some light on the matter. For example just because only one seed came to light does not mean others were not present. However if only one seed from hundred was present that might suggest a lesser fraction derive from the claimant whereas if "a few" means only 3 or 4 seed entries then that might suggest a rather higher fraction. Although substantiality is not necessarily a purely quantitative matter, some idea of numbers would be a start".
The case will now continue. The 1709 Blog expects events to accelerate since Judge Birss has said plainly that he expects the case to be dealt with very quickly and economically.

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