Blockchain as a database—proposal for a new test for the criterion of ‘independence’ in the legal definition of a database for the purposes of copyright and the sui generis right

Abstract

Technology’s exponential growth often outpaces that of the law. The persistence of outdated legal concepts that were not drafted with new technology in mind leads to legal uncertainty. This article focuses on one example of such a friction between old law and new technology, namely the eligibility of blockchain as a‘database’ for protection under the EU Database Directive, as implemented into UK copyright law. The most problematic requirement for blockchain as a candidate is that the material inside the database be ‘independent’. This can pose a significant hurdle for blockchain to succeed as the immutability of blockchain is ensured by the ‘linked-list’ structure in between the blocks and the combinational hashing of data within the individual block. This article examines this issue and proposes a solution to this quandary: to divide the data recorded on a blockchain into ‘content’ and ‘structure’, and confine the criterion of ‘independence’ to the former. In reaching this solution, the author examines previous literature on the different types of data that can be found in databases, as well as how the concept of ‘independence’ is understood by judges and academics. This article will be of practical significance for developers of non-open source blockchain applications who wish to protect their products as a database.