The new case Software Solutions Ltd and others v 365 Health and Wellbeing Ltd and Smith deals interestingly with questions relating to the intellectual property rights in database schemas.

In this case, it was common ground that the schema (the "XML Schema") was protected by copyright as a literary work. However, although the copyright issue was not determined by the judge, she helpfully defined what the XML Schema was. Defining a database schema is always a fact specific exercise. It is very useful to see a judgment which addresses the attributes of a specific schema and points to the reasons why it would be protectable as a literary work.

Applying first principles, in order for a database schema to be protected as a literary work, it has to be product of human creativity (as distinct from something that has merely been generated to achieve a defined outcome). Creativity is assessed by reference to the likelihood that another person designing a product for the same purpose would come up with the same solution.

In this case, the judge was satisfied on the factual evidence that the XML Schema had been developed with great effort, time and expense and that it was special and unique. Specifically, the Claimants' witnesses described the effort made to develop the XML Schema to create a structure and the logic for handling (representing and validating) the data.  The expert evidence was that the XML Schema provided structural parameters, validation rules and logic which meant that, although it was not software, it could be used in place of additional code to provide to provide instructions to software. In other words, like many such schemas, the XML Schema had been carefully designed to create efficiency in other software components.  In light of these facts, it is clear why the parties agreed that the XML Schema was protected by copyright. 

The Court was then asked to decide whether database rights subsisted in the XML Schema. The first question was whether the XML Schema was "a collection of independent works, data and/or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic means" (per Article 1(2) of the Database Directive). The judge held that the XML Schema provided a structure or framework for arranging independent data in a systematic or methodical way but did not agree that it was, of itself, a collection of independent data so arranged.  The judge noted that "independent data" are data which have an autonomous informative value (such as fixtures in a football league), providing interested parties with relevant information.  By contrast, there was no evidence that the elements making up the XML Schema had autonomous informative value. Therefore, it was held that the XML Schema was not protected by database rights. 

The judgment also deals with additional damages arising from the flagrancy of the infringement: we will deal with this subject in a separate post.