Database Right - the IP Right it's better not to have?

Back in the early 2000s I litigated some cases on what we thought would be a powerful new right: Database Right. Official sports organisations objected to independents using databases of sports fixtures in their businesses - and their representatives settled the cases. Everyone understood that businesses like the FA and the British Horseracing Board had a valuable new right in their sports data, a right to prevent the "extraction and reutilisation" of their data.  We were all wrong!

In 2012, to everyone's surprise, the European Court of Justice held that database right does not exist in a database that you only created because you were arranging for the sports event to take place anyway.  The best of the technical summaries is by Bird and Bird: http://www.twobirds.com/en/news/articles/2013/ecj-...

The next question was, could aggregators "scrape" data from the websites of - say - airlines to create their own commercial databases? Now the legalities get complex - if you want to understand the details, I recommend this summary by Taylor Wessing - really good writing: http://www.taylorwessing.com/download/article_aggd...

Fast forward to 2015 and Ryanair wanted to close down an independent website that allowed Dutch customers to compare the prices of low-cost airlines. It did this by relying not on IP rights but a contract term - which said that use of its data by price comparison sites was conditional on them entering into a licence agreement. 

Now - if the prices databases were protected by Database Right then Ryanair would own an IP Right but one with a catch: Database Right, like copyright, comes with various "fair dealing"-type exceptions, and the original court ruling in Holland had been that Database Right existed but "legitimate use" conditions associated with Database Right meant Ryanair could not rely on its website terms and conditions.  The ECJ held that the Database Right did not apply - which left Ryanair freer to use its contract terms.

As everyone's favourite IP blog, the IPKAT, notes, "Most people would be thrilled to be able to claim [IP] protection over their database. Yet the decision in Ryanair shows that in some instances it is not that bad that this may not be the case, as at least one remains free to tailor the relevant contractual terms as they please".  Which means - Database Right could be the IP Right that nobody wants to have.....