British Horseracing Board Ltd and others v William Hill Organisation Ltd
This case was reported in the last edition of Masons Computer Law Reports ([2001] Masons CLR 79). In the High Court Laddie J. held that William Hill had infringed the database rights of the British Horseracing Board (“BHB”), in that William Hill’s use of the information contained in BHB’s annual fixture database for its website business was an extraction or re-utilisation of a substantial part of the database, contrary to Article 7(1) of the directive on the legal protection of databases (“the Directive”). Alternatively, William Hill’s actions were held to be infringing by virtue of its repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of the database, contrary to Article 7(5) of the Directive. BHB was granted an injunction restraining William Hill from using the content of the database for its internet business.
William Hill appealed against the decision. The appeal was on the basis, amongst others, that (1) the Court had not considered the fact that William Hill only used the information contained within the database, it did not copy or use the form of the database (i.e. the “database-ness”) in any way; and, (2) the interpretation of the database right by the High Court gave an excessively wide protection to databases. William Hill made specific reference to other EU jurisdictions (Sweden and the Netherlands) where a narrower approach to the Directive had been adopted.
The Court of Appeal overturned the injunction granted to BHB as a result of William Hill’s acquisition of a licence allowing it to use the database information for its website business. Further, the case was referred to the European Court of Justice (“ECJ”), by way of an Article 234 reference, for its interpretation of the Directive. This is the first time the ECJ will be required to consider the Directive.
The specific questions to be referred to the ECJ are due to be drafted shortly.
This is a good opportunity to set out the procedure involved in an Article 234 reference (formerly an Article 177 reference).
This article of the Treaty of Rome permits any court or tribunal of a Member State to make a reference to the ECJ if it believes that a decision on (a) a question of interpretation of the Treaty of Rome, (b) an act of an institution of the European Union, or (c) an act of those statutory bodies established by the Council, is necessary to enable it to give judgment.
Once a court makes an Article 234 reference it is usual for the proceedings to be stayed pending the ECJ judgment. The specific questions are agreed between the parties to the action and are forwarded, along with the Court Order, to the Registrar of the ECJ. Information regarding the reference is published in the Official Journal of the European Communities and the matter is translated into the various community languages. Once translated the reference is assigned to a Judge Rapporteur and an Advocate General. Interested parties are then invited to submit written observations suggesting how the ECJ should deal with the reference.
In a Preliminary Report, the Judge Rapporteur questions whether the procedural formalities of referral have been satisfied, in which event a Report for Hearing is prepared which includes a summary of the facts/history of the case and any written observations received. An Oral Hearing takes place subsequently where the parties remind the ECJ of key arguments, respond to arguments put forward in the written submissions, and reply to questions/concerns raised by the ECJ/Advocate General.
Approximately 1-3 months after the Oral Hearing the Advocate General will publish his Opinion which sets out a fully discursive analysis of the issues but which is non-binding. Subsequent to this (approximately 1-4 months later) the ECJ will deliver its judgment in open Court. The judgment merely provides guidance on the law for the national court to apply.
The matter is then referred back to the national court for it to decide how to apply the ECJ judgment to the facts, and ultimately make a ruling.