The High Court judgment in Technomed v Bluecrest Health Screening is interesting and important for two reasons – ...
...firstly the judge (David Stone – Sitting as a deputy High Court Judge) held that the sui generis database right could subsist in a pdf copy of a “database” and extraction / reutilisation of data from that pdf would infringe the sui generis database right and - secondly data formats encoded in XML (but not the XML language as software) could be protected from copyright infringement as a literary work. Alongside, more usual issues of copyright infringement and database right infringement. It is the second of those issues that this article focuses on.
The Technomed and Bluecrest had been in a commercial relationship for a number of years but this relationship had soured and Bluecrest were looking to jump ship to Express Diagnostics. Technomed supplied Bluecrest with access to an internet based electrocardiogram (ECG) analysis and reporting system, the "ECG Cloud". This system allowed for the remote analysis of ECGs and for a cardio physiologist to input information based on certain criteria set out in a database. The ECG Cloud produced an output in an extensible mark-up language (XML) file with a standardised format (the XML Format). The XML Format file could then be used insert data into a template to produce a report for either the patient or their GP.
The claim for infringement of the XML Format – as a literary work – arises from the very nature of the XML language. As the Judge explained, “103. XML is a standard computer language for defining / representing structured data in way which is partly self-describing using natural language terminology. It is not a data format, but a standardised abstraction which allows flexibility in the kinds of data structure which can be represented, and in the choice of terminology and layout. Because of its flexibility, it is likely that independently designed XML schemata will differ markedly, even when describing the same data.” That being the case Technomed claimed copyright rights in the data formats written in XML - case law having previously decided that the XML Format cannot be protected as a computer program under s.3(1)(b) of the Copyrights Designs and Patents Act 1988: See the Court of Justice’s decision in SAS Institute Inc v World Programming Ltd  RPC 31, but having accepted that copyright protection could apply to it as a literary work, subject to meeting the “intellectual creation test”: See Arnold J’s judgment in SAS Institute Inc v World Programming Ltd.  EWHC 69 (Ch) at .
An expert comparison of the Technomed XML format and the XML file produced by Express for Bluecrest showed 16 characteristics shared by the two files – which the expert regarded as an inconceivable result to have arisen through coincidence.
The judge having accepted that the intellectual creation test was met in respect of the Technomed XML Format - a finding of infringement was then inevitable as express had access to Technomed’s XML Format from Bluecrest and in the face of a complete failure by Express to put forward any evidence of independent creation of their XML schema .
This judgment confirms the distinction that can be drawn between XML as a programming language (and therefore not protectable as software per se) and the independent creativity involved in the using XML to create data structures, choice of terminology and layout (and therefore copyright protectable as a “literary work”). The only question that remains is whether an XML Format should really have to be treated as a “literary work” to gain copyright protection – or does there now need to be a further class of protectable work under the CDPA 1988 to take this technical advance into account?
Dr Tim Sampson / 25th Sep 2017
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