IP, Data and AI in the digital age – Part 4

Last week we looked at the substantial investment test for the database right and how, when viewed from a quantitative perspective (ie. how much money was invested), its primary effect was to deny propertisation to efficient producers. The more efficient you are, the less likely it is that your database will become property.

Obviously, that makes no sense.

This week I’m going to look at qualitative investment. The qualitative investment test means that, if you create a database with minimal financial investment, your database will become a form of property provided it is of a high enough quality.

What's the best way to assess this qualitative test? Here's another thought experiment.

Imagine you go to your local supermarket, take a bottle of wine, and leave without paying.

You are arrested for theft, and the next day you appear before the court. You argue that it was really a terrible bottle of wine, the worst bottle of wine that you've ever come across. In fact, it's such a bad bottle of wine that it doesn't deserve to be treated as property. Therefore, if it's not property, there can be no theft, and you're not guilty.

What are your chances of succeeding in this argument?

Zero.

Your chances of succeeding are zero because, when it comes to physical things, propertisation has no link to whether the thing itself is of good or bad quality. There are innumerable things in the world of physical property which have no value or quality whatsoever (think of all the things you put in your rubbish bin), but which are nevertheless property.

So, in the physical world, how are quality, value and merit assessed?

They are assessed by the market. They are assessed by supply and demand.

And this highlights one of the fundamental problems with the current view of copyright and database rights. The current law thinks that the legal system has a part to play in assessing the quality, value or merit of a copyright work or database: that assessment then decides whether or not the work or database becomes property.

If you want to design an economy that reflects a digital age and allows for an optimal allocation of resources – it’s hard to imagine anything that makes less sense.

The legal system has no role to play in assessing, as part of propertisation, whether something has value, quality, or merit. That's the function of the market, and it's a function that the market will always discharge faster and more efficiently than a legal system ever will.

14th July 2026