An XML schema is a copyright literary work but not a database, says High Court

Intellectual Property Enterprise Court considers IP rights in XML formats

The Intellectual Property Enterprise Court has ruled in a dispute about a suite of computer software involving mental health self-help tools in Software Solutions Ltd and others v 365 Health and Wellbeing Ltd and another [2021] EWHC 237 (IPEC).

The dispute concerned a mental health app called Beating the Blues (BTB). The Claimants claimed that the Defendants had infringed copyright and database right in a computer application development framework known as the 'Integrated Development Environment for Applications' (IDEA System) by marketing BTB and specifically version 5 of BTB ("BTB v5").  

The court had to rule on the following issues:

  • what was the XML Schema? Was it part of the IDEA System or part of the BTB application developed using the IDEA System?
  • who owned the rights in the XML Schema? If the answer was the Claimants, the Defendants admitted that BTB v5 infringed the copyright and any database rights that the court found to exist in the XML Schema;
  • as it was accepted by the Defendants that copyright subsisted in the XML Schema, whether database rights also subsisted in it;
  • what factual findings the Court could make which may be relevant to the consideration of additional damages under section 97(2) of the Copyright, Designs and Patents Act 1988 (1988 Act) and/or Article 13(1) of Directive 2004/48/EC ("Enforcement Directive").

Software Solutions failed to establish that the XML Schema was a database as the law requires a database to be ‘a collection of independent works, data or other material’. 

In summary, the court found:

  • the XML Schema was part of the IDEA System. An XML schema is a set of data formats that provides the structure and verification rules for XML files. The evidence showed that the XML schema that was used to create, validate and run the defendant's application was substantially the same XML schema that was used to create, validate and run any interactive multimedia self-help application created on the Claimant's system. It became an important part of the Claimant’s system.
  • the First Claimant owned the rights in the XML Schema. Consequently, BTB v5 infringed the literary copyright in the XML Schema;
  • the judge found that the XML Schema provided a structure or framework for arranging independent data in a systematic or methodical way which was then individually accessible by electronic means.  However, it was not clear to the judge that it was itself a collection of independent data so arranged. 'Independent' data are data which are "separable from one another without their informative, literary… or other value being affected". The claimants did not adduce evidence that satisfied the judge that the various elements making up the XML Schema had autonomous informative value. Much as the individual words in a literary work cannot be separated without losing their literary value, the judge said that in the absence of any submissions otherwise the individual categories of what elements, attributes and data are validly contained in the XML Schema could not be separated without losing the informative value of the rules as a whole.
  • the Defendants' infringements were flagrant under section 97(2) of the 1988 Act, the Defendants had accrued benefits from the infringements, and the infringements and this litigation had caused distress. Therefore, the court granted the claimants’ recovery of additional damages.

Published: 2021-02-24T10:00:00

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