BS: legal - database information

Subject: BS: legal UK - database information
From: SPB-Cooperator
Date: 04 Apr 11 - 04:42 AM

Once again I am picking the collective brains of everyone in Mudcat land.

The issue is that a client engaged a consultant to set up a database which has 2000+ records. The database itself is on a remote server, but the client only seems to have access to the user interface that was set up by the consultant, but not the database itself.

because the consultant was (allegedly becoming increasingly unreliable, the client decided to transfer the data onto a spreadsheet based system on there own network.

However the exported data only included 80% of the fields.

Since January, the consultant has been asked for an export of all the records that includes all the fields, but he has done nothing so far in spite of several calls.

The client needs to do a major mailout in the next couple of weeks, and the only way to get all the information in the new system is to go through each individual record in the old database and enter the missing information longhand.

The size of the task would entail maybe 50-60 hours work, for which somebody would have to be paid.

Does anyone know what legal recourse the client has to either:

(a) Enforce the consultant to provide the required information in the next few days

or

(b) Recover the costs of reentering the required information.

A bit of back ground - the client is a small-medium charity, and the consultant has been employed full time by a IT company.

Subject: RE: BS: legal - database information
From: Newport Boy
Date: 04 Apr 11 - 06:34 AM

I'm not legally qualified, so this is just my view.

It depends on the contract between the client and the consultant, which may be as simple as a letter. If the consultant was only engaged to design and set up the database application, and the client entered all the data, the client should be entitled to recover all the data from the system. As always with contracts and the law, enforcement of the right is the problem.

If the client provided the data in some other form to the consultant, who incorporated it into the database, the consultant may be able to argue that the client already has the data, and is only entitled to the outputs that were called for by the contract.

One possible lever for the client is that if the database system is no longer to be used, the consultant has no right to retain any of the data.

I'm sure others can produce better advice.

Phil

Subject: RE: BS: legal - database information
From: JohnInKansas
Date: 04 Apr 11 - 06:52 AM

If he has all the individual records, or can download them all as separate files, Office Word, Excel, or Access should be able to do a "merge" of the individual records into a single database.

The details will depend on the specific form of the records, and on how complete they are, so I won't attempt advice on precisely how to set up the process. Of course if the individual records are on index cards in a file drawer, re-entry of the data may be the best one can do.

A very common error in the industries where I've worked is writing a contract for "development work" that fails to state what belongs to the creator and what becomes (or remains) the sole property of the buyer. A contract or order for the services might help, although it would be unusual for most small businesses (including charities) to be aware of all that should be spelled out. Even an invoice that states what is being delivered and needs to be paid for might help.

In the absence of a very specific prior agreement, a rather disagreeable argument seems likely, regardless of what action is applied. Once there is disagreement, hiring a good lawyer may be the best course of action. (A respectable charity might expect to get a discount(?) if the services required aren't extensive.)

John

Subject: RE: BS: legal - database information
From: Richard Bridge
Date: 04 Apr 11 - 10:29 AM

Which jurisdiction?

Subject: RE: BS: legal - database information
From: SPB-Cooperator
Date: 04 Apr 11 - 11:13 AM

UK - as per the original post but not the thread title.

Subject: RE: BS: legal - database information
From: Richard Bridge
Date: 04 Apr 11 - 04:04 PM

Ah, ta.

There are at least two separate issues.

There is the issue of the service to which the charity is entitled. That is indeed a matter of contract although terms may be implied into contracts in three ways (some might argue a fourth, custom, but it is probably not in point here).

Statute implies what it implies and I am not aware of any relevant statutory implications.

Some terms are implied by law as a result of the nature of the agreement - some implied terms in contracts of employment are like that eg the mutual duty of good faith, but see also Liverpool City Council -v- Irwin - a term will not be implied in law merely because it is reasonable, although it will not be implied in law if it is not.

I am very doubtful if a term entitling the charity to output of all records would be implied in law.

Some terms are implied in fact. Some express these to be terms that are necessary for business efficacy but the most common formulation is the officious bystander test - that if some officious bystander suggested it to the negotiating parties while negotiating they would BOTH "suppress him with a common "of course"". I doubt if the consultant would have done so, see Shell -v- Lostock.


Next is ownership of the database and the rights in it.

Databases are protected by two different rights. Those that are the intellectual creation of the maker are protected by copyright. Those that are mechanical (like a white pages telephone directory) have database right which only protects against substantial unauthorised extraction. While contracts of employment have the benefit of statutory implied terms as to ownership in some cases, consultancies do not (pace one case I will mention). So I think that in general it is unlikely that the courts will treat the charity as the owners of any relevant copyright or database right.

Now comes "re Gestetner". It is a case in which it was held implied as a matter of fact that the commissioner of a work (fully paid for) was entitled to the copyright in it.

So if the charity has fully paid for the database and is not subject to ongoing fees (save possibly for access and maintenance) I think it very possible that the charity is entitled to ownership of the copyright or database right and MAY be entitled to delivery up of material reproducing it. It probably would not even then solve the re-entry cost although if the consultant is in breach of contract he might well be additionally liable for the costs to the charity of mitigating the damage to them flowing from the breach of contract (see Banco de Portugal -v- Waterlow).

Usual exclusion of liability applies!

Subject: RE: BS: legal - database information
From: Jim Dixon
Date: 04 Apr 11 - 04:36 PM

Where did the data come from that is now in the database? I assume the client (the nonprofit org) initially had the data in some form, and then they turned it over to the consultant. Didn't they keep a backup copy? Of course if their only copy is in the form of 2000 hand-written index cards, you still have a problem, but it is not insoluble. If you have the data in the form of ANY kind of computer file, that's much better, even if it's in a format that the client has no idea how to work with, such as computer-printed paper. It will be a piece of cake to anyone who is an expert at handling mailing lists. I used to do that kind of work myself.

2000 is small potatoes. I used to work with lists of up to 200,000.

Look in the yellow pages under "Mailing Services." If you don't want to select a company at random, call up another nonprofit org. and get a recommendation. Call one of these services, tell them what you've got and what you need. Get a price quote, and an estimate of how much time it will take. It might be a lot less than you expect.

On the other hand, if this org is used to using unpaid volunteers to stick mailing labels onto newsletters, they might balk at the cost. But it still might be better than continuing to pour money down a rathole.

Subject: RE: BS: legal - database information
From: SPB-Cooperator
Date: 05 Apr 11 - 07:36 AM

thanks all