A publisher engaged a database manager to maintain a database of subscribers. There was no a formal contract and no provisions for termination were agreed. The relationship ended badly and the publisher gave a month's notice. The database manager refused to release the database until outstanding fees and damages were paid - raising an old-style legal concept that was useful in the days before modern contracts.
The court had to wrestle with whether the database could be treated in the same way as, say, a car in the garage. A common law lien is an ancient idea, giving rights to a craftsman who is doing work on an item to keep it until he is paid. It can be excluded by contract and is only really needed where the contract is inadequate.
The County Court judge said that the law of lien could be extended to electronic media, by analogy with physical documents.
The Court of Appeal disagreed. Although modernising the law in this area might be sensible, it was not consistent with a 2007 House of Lords decision (OBG v Allan) and it might have unintended consequences - in an insolvency, for example. The information was not a physical object capable of possession. There could be no lien on a database.
More generally, experienced intellectual property judge Floyd LJ took the opportunity to give a general warning against 'treating information as property'. He emphasised the distinction between information, the physical medium on which it is recorded and the rights to which the information gives rise. He said that 'Whilst the physical medium and the rights are treated as property, the information itself has never been.'
Mills & Reeve partner Tim Winn ‘looks forward to the application of bailment to peer-to-peer file sharing ("I couldn't delete it, your honour"), etc….’
All of this stuff about common law liens arose because the parties had not put their arrangements down properly in a contract. It would have saved a lot of trouble and expense for them if they had.