Database belongs to sales agent

Normally IP belongs to the employer through the wording in an explicit employment or independent contractor’s agreement though in law impliedly copyright belongs to the employer in terms of work undertaken by the employee so if there is no written agreement this can assist.

However The EC Database Directive as implemented by the UK in the Copyright and Rights In Databases Regulations 1997 introduced a new database right.

Here it defined the maker of the database as the person who took the initiative in obtaining, verifying or presenting the contents of the database or who assumes the risk of investment in the same. Employees are treated as working for the employer as above.

However with Cureton v Mark Insulations Limited (MIL) it was held that the first owner of the database in this instance was the self-employed agent. Here the facts were peculiar admittedly: the database grew organically; it was not specially commissioned by MIL; Mr Cureton was self-employed and employed himself a number of employees; the role of Mr Cureton was to sell MILS’s home insulation products to customers; Mr Cureton would distribute business cards of MIL, answer a dedicated phone line for leads and business and distribute marketing materials all of which was paid by MIL. Mr Cureton used the database he had built up to sell the customers other non-MIL products and services.

A dispute arose and MIL argued return of all property included the IP and the database for which it argued it was the maker analogous to an employer. The court disagreed as the database had grown organically in the absence of any commissioning agreement and as a by-product of the agency activities. Accordingly MIL had not assumed the initiative in obtaining, verifying or presenting the contents of the database or had accepted the risk of investment whatsoever.