Technomed Ltd & Anor v Bluecrest Health Screening Ltd & Anor

A database may qualify for database right and copyright even if it is simple, compact or stored as a PDF, provided its constituent materials are independent, systematically arranged and individually accessible. Database right depends on substantial investment in obtaining, verifying or presenting the contents, not merely creating them. Copyright originality presents a low threshold, but database copyright additionally requires intellectual creation through selection or arrangement. Copyright protects original expression, not general ideas or commonplace concepts. At the liability stage, copying establishes infringement; causation and loss ordinarily fall to a later damages inquiry. Additional damages may be awarded for flagrant infringement where the conduct shows deliberate or scandalous disregard for rights.

Technomed claimed database right and copyright in its ECG Cloud system against Bluecrest and Express, following Bluecrest’s transfer of its ECG screening work to Express. The claims concerned the ECG Cloud database, XML format, explanatory materials, patient definitions, and two diagrams. The defendants denied subsistence, originality, infringement and, at trial, advanced a causation defence.

The court determined whether the database and the various literary and artistic works were protected, whether they had been copied or substantially reproduced, whether the defendants’ conduct was flagrant, and whether there was a realistic threat of renewed infringement. The counterclaim for breach of contract and assessment of financial relief were deferred.

1. Database right. The Database was a collection of independent materials arranged systematically and individually accessible. A database need not be large, technically sophisticated or stored in a particular format. A PDF can constitute a database where its contents can be accessed and used as such. The Database therefore fell within Article 1(2) of the Database Directive.
2. Technomed had made substantial qualitative investment in obtaining and verifying the data and presenting it in a structured form. The investment was sufficient for database right to subsist under Article 7(1). The defendants extracted the whole Database and repeatedly extracted and re-utilised insubstantial parts through patient reports. Version 03, substantially rewritten by reference to skill and judgment, did not reproduce a substantial part.
3. Copyright subsistence and originality. The Database qualified for copyright as a database because the selection and arrangement reflected intellectual creation. Copyright also subsisted in the XML Format as a literary work, the Explanatory Materials, each Patient Definition, and the Two Hearts and Wave diagrams. Originality required more than negligible intellectual effort, but it was a low threshold. Copyright did not confer a monopoly over generic ideas, medical concepts or commonplace subject matter.
4. Infringement. Bluecrest and Express copied the XML Format and reproduced the Database, Explanatory Materials, Patient Definitions and diagrams. Versions 00, 01 and 02 infringed. Version 03 involved copying and access but did not substantially reproduce the earlier expression. Copyright in the Database as a literary work was also found, with the alternative issue addressed on the assumption that the database finding was wrong. Preparatory design material for a computer program was not separately infringed.
5. Causation and relief. Causation was premature at the liability stage because damages had not been pleaded or elected. Technomed was entitled to elect damages or an account of profits, with assessment deferred. The infringement of the Two Hearts Diagram, the Wave Diagram and the Explanatory Materials was flagrant under section 97(2)(a) of the Copyright, Designs and Patents Act 1988. No realistic threat of further infringement existed.