Database right and exhaustion: can you help?

Database right and exhaustion: can you help?

Right: perplexed? You can always ask the IPKat

A friend of the IPKat has written to him today as follows:
"Have there been any decisions relating to the exhaustion of database right in respect of the right to control resale of an item such as a CD which holds that database after the copy in question has been previously sold within the Community by the rightholder or with his consent (Database Directive Art.7(2)(a); Copyright and Rights in Database Regs r.12(5)). I have looked in Copinger and run searches in Lawtel, LexisNexis etc but have had no hits on this whatsoever".
The IPKat tried BAILII too, but to no avail. Suspecting that there may be some German, French and Dutch case law that addresses the issue, he asks readers not just from the United Kingdom but throughout the European Union: do you know of any such cases and can you give any references or details? Please post your answers (if any) below or email the IPKat here.
Database right and exhaustion: can you help? Database right and exhaustion: can you help? Reviewed by Jeremy on Friday, January 19, 2007 Rating: 5


David said...

Since database right is not connected with a physical article, I imagine that exhaustion of rights would not apply, the same way that exhaustion does not apply to rebroadcasting (I can't remember the case, but I think there is an EC one on this subject). However, resale of a carrier on which the database is stored would fall within the doctrine of exhaustion in the same way as for copyright. I think the situation would be the same as that in Deutsche Gramaphon v Metro [1971] CMLR 631, where resale of records (vinyl in those days) could not be prevented by the original owner of the copyright.

Note that copyright in a database (section 3A) is different from the database right. The database right can be infringed differently from the copyright in the database (see section 16 of the database regulation).

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