Thoughts on 'Your Response v Datateam Business Media': Databases, information and property

Will Tovey's picture

A Court of Appeal case has come close to accepting information, such as a database, as property. The consequences of such a ruling, overturning decades of precedent, would be vast - giving individuals ownership rights over thoughts and ideas.

Judgment available here: Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281This case concerned a Publisher (Datateam) and a Data Manager (Your Response). The Publisher had contracted with the Data Manager to run their subscriber database. The Published ended the contract and a dispute arose as the Data Manager refused to hand over the database until it had been paid and the Publisher refused to pay until it had the database.

The main issue the Court of Appeal had to decide on was whether YR could exercise a common law possessory lien over the database. This is an old contractual remedy whereby someone (originally an artificer) who was in possession of goods in order to carry out some work relating to them was entitled to keep them if they were not paid for their work (or until they were paid).

The issue was whether the database counted as "goods" in YR's "possession."

Giving the main judgment Moore-Bick LJ found that a possessory lien required some sort of tangible property, and could not apply to intangible property (overturning the ruling of the County Court). However, in doing so he seems to have accepted that a database is itself intangible property. While this isn't central to the ruling (and so arguably not binding), it is a worrying assertion. If a database is to be considered property then surely all sorts of common law rights in relation to property must apply to it - going beyond the statutory "database rights" or copyrights (which are themselves property)?

Fortunately Floyd LJ comes to the rescue. While he agrees with Moore-Bick LJ on the reasons for not allowing the appeal, he calls out the difference between information and property:

An electronic database consists of structured information. Although information may give rise to intellectual property rights, such as database right and copyright, the law has been reluctant to treat information itself as property... Whilst the physical medium and the rights are treated as property, the information itself has never been.

Questions as to how information should be treated, and how the common law should adapt to the 21st century, information-centric way of life are important. But I'm glad they have not been answered accidentally - arguably disastrously - due to an unclear IT contract.

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