Former employee who sold firm's databases on eBay found guilty of database rights infringement

The High Court also found the man who purchased the databases, and the woman who subsequently marketed them for sale to others, guilty of database rights infringement. 

The employee, referred to as 'Mr Wall' in the High Court's judgment, admitted to using login details he was given whilst employed by Executive Grapevine International Limited (Grapevine) to access Grapevine's database after he had left his employment at the firm.

Wall sold Grapevine's business leader's database, its HR database and the firm's "entire database" on eBay, but claimed that in so doing he had not intended for the databases to be "widely circulated" by the buyer, Mr Justice Norris said.

Darren Gaskell bought the databases from Wall on eBay and they were then "widely marketed" by Sally Gaskell. As part of that activity Sally Gaskell offered Grapevine the chance to purchase their own database material, according to the judge.

Mr Justice Norris said that Grapevine's databases were of "considerable commercial value" and that it was "immaterial" that Wall had not intended for them to be so widely circulated following his initial sale. As a result he deemed Wall to have infringed Grapevine's database rights and said that Darren and Sally Gaskell had too.

"I am satisfied that the database right exists in the Grapevine databases," Mr Justice Norris said. "I am satisfied that it was infringed by Mr Wall in extracting the material and then re-utilising it when he sold it. I am satisfied that [Sally and Darren Gaskell] infringed the database right, when they offered the database for sale generally, through their entities 'moneytrees.com', 'onlineemarketing.com' 'onlinemarketing.co.uk' and 'thisisnowdata.com'."

"The intention with which the act is committed is immaterial," the judge said. "Mr Wall's liability derives from what he did, not from what he thought he was doing. There seems to me to be no answer to the challenge that he has infringed Grapevine's database rights."

Mr Justice Norris rejected the defence put forward by Sally and Darren Gaskell that theirs was an "innocent" infringement of Grapevine's rights.

"The innocence of the infringement cannot affect the fact that the infringement took place," the judge said. "It goes at most to the measure of damages which may be awarded. So I am in no doubt that infringement occurred and the only question is as to the measure of damages flowing therefrom."

Mr Justice Norris ordered Wall to delete the database material that he had downloaded from Grapevine's systems and not to make any copies of the information either. The judge issued the same injunction, on a provisional basis, against Sally and Darren Gaskell and in addition ordered them to "disclose details of all parties to whom they, since acquiring the database, have supplied copies". The injunction against the Gaskells is provisional pending a potential hearing into whether they are liable to pay damages for their infringement of Grapevine's rights.

Under UK law a database right can only subsist if "there has been a substantial investment in obtaining, verifying or presenting the contents of the database".

If database rights subsist, those rights are said to be infringed where a person "without the consent of the owner of the right ... extracts or re-utilises all or a substantial part of the contents of the database."

Database rights were created by EU law makers in order to encourage the development of database-dependent digital systems. They allow creators to stop others using a database or the information in it if the investment of time, money and skill in that original database was large enough. Under copyright law alone such protection would not necessarily apply if the database contained merely facts, as only the expression of facts and not the facts themselves can be copyrighted.