Introduction

A database, that is a collection of data or other material that is arranged in such a way so that the items are individually accessible, may be protected by copyright as a literary work and/or database right. This protection can apply to both paper and electronic databases.

There is often confusion around the subsistence of copyright in a database. A database may attract copyright protection but only in certain limited circumstances.

Firstly, the structure of a database may be protected if, by reason of the selection or arrangement of the contents, it constitutes the author's own intellectual creation. 

Secondly, depending on what is contained in the database, copyright might also exist independently in the contents of the database (for example, a database of images where each of the images would attract its own copyright protection as an artistic work).

Copyright protection arises automatically as soon as the created object has some material form.A person does not need to register or publish the work. The first owner of copyright is 'the author' which in the case of a database is the person who creates the database. Copyright law protects only original databases. In other words, copyright protects only the original contributions of an author to a database i.e. his efforts and creativity with respect to the database.

Now, as to the interpretation of the word ‘original’ two distinct schools of thought exist.While one school interprets ‘original’ as including a minimum level of creativity (called modicum of creativity rule. The other treats creativity to be alien to the concept of originality (called sweat of the brow doctrine).

According to the ‘modicum of creativity’ rule, though the creativity required is minimum, it is nonetheless integral to attract copyright protection. In other words, it does not matter that a person has spent a million dollars in creating a database, if the work lacks the minimum level of creativity required by copyright law, it will fail to qualify for protection.

A database is ‘original’ merely by reason of the fact that the author has invested time, money, labor or skill in its creation. In other words, as long as a person has spent a million dollars in the creation of a database, the database would be entitled to copyright protection, even if such database lacks in creativity.This doctrine is based on the principle that what is worth copying is definitely worth protecting.

Sui Generis Protection

This protection regime involves the conferment of certain proprietary rights in the contents of the database, independent of any rights accruing under any other law.Unlike copyright law, the accrual of such rights is independent of the requirement of originality/creativity and therefore non-creative databases, as aforesaid, fall within the ambit of such protection.The sui generis protection model has, till date, been manifested only in the EU Directive on legal protection of databases. The Directive defines a ‘database’ as including both, a paper and an electronic database. All such databases would qualify for sui generis protection as long as

substantial investments (qualitatively or quantitatively) have been made in obtaining, verification or presentation of the contents of the database.Such protection would extend to the right of the database owner in preventing a substantial (qualitatively or quantitatively) extraction or re-utilization of the contents of such database without his consent.

The Economic Importance of Databases

Compilations of works or other material have always been an important component in economies world-wide. Such databases were traditionally put on paper or other forms of tangible support. With the advent of the digital services of the Information Society, electronic databases have become indispensable platforms for the distribution of arranged and edited content of any kind.

As was confirmed in the two International Conferences on Electronic Commerce organized by WIPO in 1999 and 2001, databases are the basis for electronic commerce - be it for the direct electronic delivery of on-line services, or for electronic ordering followed by the delivery of goods. Databases are at the origin of and the heart of electronic commerce. Electronic newspapers, remote health care, tourism services, distance shopping, electronic betting, interactive games, video-on-demand or music-on-demand services are only examples. Most of the new commercial electronic services as well as an increasing number of public services originate from electronic databases – they are an essential building block for the Information Society.

Considerations

1. Database creators should assess which databases they have rights in and whether they want people to be able to use them over time.

 Recommendation: Attaching a users' license will make it clearer that the resource is available for use by others.

2. Users should consider which databases contain information that they wish to access and/or reuse. Are they protected by copyright or the database right? 

Recommendation: If the answer is yes, users should check if the rights holder has entered into a license allowing certain uses. If not they may request specific permission from the rights holder.

3. Some databases may be created in the course of employment or by multiple authors/contributors. In this situation clarity should be sought on exactly who was involved and who has rights in the database. 

Recommendation: Multiple authorship and the specific rights associated with each author should be confirmed in writing as this will make things much simpler if and when a rights transfer or license agreement is entered into.

4. A rights holder may want to protect certain elements of a database and make others freely available in the public domain for re-use.

 Recommendation: The rights holder should make sure they are clear about what rights they have and which ones they are willing to forgo and then draw up a license accordingly.

5. It is possible for a rights holder to adopt a 'some rights reserved' position allowing certain uses and not others. For example they may want to allow others to copy or modify for the purpose of preservation but not for commercial use. 

Recommendation: Database creators should consider how long they need the contents of their databases to remain accessible for and clearly state what rights exist with regards to preservation actions that may be required to preserve usability of the database over time.

Database rights in different countries

European Union

 On 11 March 1996 the Council of the European Union passed Directive No. 96/9/EC of 11 March 1996 on the legal protection of databases, giving specific and separate legal rights (and limitations) to certain computer records.The law calls these database rights. Rights afforded to manual records under EU database rights laws are similar in format, but not identical, to those afforded artistic works.Database rights last for 15 years.There is no registration for database right - it is an automatic right like copyright and commences as soon as the material that can be protected exists in a recorded form. 

Analysis of EU Database Directive

Removes distinction between protection of expression and protection of ideas Database producers can demand payment for use of content that is not otherwise

copyright-protected Updating the database renews copyright coverage for the

whole database (not just the revisions) Strict limits on re-use of database without licensing. No “fair use” exception for research purposes Independent invention not a defense

Russia

In article 1260 of the Civil Code of Russia, a database is a collection of independent materials presented in an objective form (articles, accounts, legal texts, judicial decisions, and other similar materials), which are systematically arranged in a way that these materials can be found and processed by a computer.

 A database need not be registered to enjoy legal protection, but the Civil Code of Russia provides for the registration of rights, which is useful if the claims are disputed in court.

United Kingdom

On 1 January 1998, the United Kingdom's law "The Copyright and Rights in Databases Regulations of 1997” came into force.

United States

Uncreative collections of facts are outside of Congressional authority under the Copyright Clause of the United States Constitution, therefore no database right exists in the United States. 

This has not stopped database owners lobbying for the introduction of such a right, but so far bills to introduce it in the U.S. have been prevented by the successful lobbying of research libraries, consumer groups and firms who benefit from the free use of factual information.

Australia

No specific law exists in Australia protecting databases. Databases may only be protected if they fall under general copyright law. Australian copyright law regarding compilations is currently examined in case law, where an initial case, Telstra v Desktop Marketing Systems was successfully litigated by Telstra, establishing a database right; however this was overturned in a later ruling, IceTV v Nine Network, where sufficient creativity was established as the defining characteristic of copyright.

Brazil

Law No. 9610/1998 confers database owner’s exclusive rights specifically for copying, distribution and translation of databases.

India

The Copyright Act, 1957 (“Copyright Act”) protects Intellectual Property rights in literary, dramatic, musical, artistic and cinematographic works.

The term “literary work” includes computer databases as well. Therefore, copying a computer database, or copying and distributing a database amounts to infringement of copyright for which civil and criminal remedies can be initiated. It is difficult to differentiate between data protection and database protection under the Copyright Act. Data protection is aimed at protecting the informational privacy of individuals, while database protection has an entirely different function, namely, to protect of the creativity and investment put into the compilation, verification and presentation of databases.

The Indian Penal Code, 1860 (“IPC”) can be used as an effective means to prevent data theft. Offences such as misappropriation of property, theft, or criminal breach of trust attract imprisonment and fine under the IPC. Although the offences of theft and misappropriation under the IPC only apply to movable property, it has been defined to include corporeal property of “every description,” except land and things permanently attached to the earth. Therefore, computer databases can be protected under the IPC, as they are movable by their very nature, and under the Copyright Act because they are a form of IP

Protection without IP

“Self-help” strategies – encryption, password protection, shrink-wrap and click-wrap licenses

•Customized products for a small number of customers

(Limits redistribution possibilities)

• Industry survey finds a large number of database products

Sold to niche markets at high prices with no protection (Maurer 1999); costly for imitators to reach the same market

• Products sold with specialized software, service, and frequent updating – tends to lock in customers

• Databases – full text contents protected even if arrangement is not; sold with software that is copyrighted

Case studies

1. Himalaya Drug Company Vs. Sumit, Suit No.1719 of 2000

In the first ever instance of copying of electronic databases, the Delhi High Court has

been instrumental in injuncting an Italian infringer (Himalaya Drug Company vs.

Sumit, Suit No.1719 of 2000). The court restrained an Italian company that had

copied the plaintiff’s online herbal database onto its website, hosted by an American

ISP. Pursuant to the Delhi High court restraining order, which was brought to the

notice of the concerned Internet Service Provider (ISP) located in the US, the ISP

removed the infringing content on its own accord and furnished the complete details

of the infringer, who had rented space on the ISP’s website.

2. International News Service (INS) v Associated Press

Two competing United States news services were in the business of reporting in the

US on World War I. Their business hinged on getting fast and accurate reports

published. Following unfavourable reporting on British losses by William Randolph

Hearst's INS, that news service was barred from using Allied telegraph lines to report

news, effectively shutting down their war reporting.

To continue publishing news about the war, International News Service gained access

to Associated Press news through bribery, news bulletin boards and early editions of

newspapers. INS members would rewrite the news and publish it as their own,

without attribution. Although INS newspapers had to wait for AP to post news before

going to press, INS newspapers in the west had no such disadvantage relative to their

AP counterparts. The AP brought an action seeking to enjoin INS from copying news.

The Court held in favor of the AP, with Justice Mahlon Pitney's writing for the

majority. A vigorous dissent was given by Justice Louis D. Brandeis.Pitney held that

the information found in the AP news was not copyrightable as "the information

respecting current events contained in the literary production is not the creation of a

writer but is a report of matters that ordinarily are publici juris; it is the history of the

day." Instead, Pitney approached the issue from the perspective of unfair competition.

He found that there was a quasi-property right in the news as it is "stock in trade to be

gathered at the cost of enterprise, organization, skill, labor and money, and to be

distributed and sold to those who will pay money for it". Given the "economic value"

of the news, a company can have limited proprietary interest in it against a competitor

(but not the public) who would attempt to take advantage of the information.

Pitney characterized INS's behavior as misappropriation. Due to the tenuous value of

"hot" news, Pitney narrowed the period for which the proprietary right would apply:

this doctrine "postpones participation by complainant's competitor in the processes of

distribution and reproduction of news that it has not gathered, and only to the extent

necessary to prevent that competitor from reaping the fruits of complainant's efforts

and expenditure."

Justice Brandeis took issue with the Court's creation of a new proprietary interest in

"hot" news and said it was an issue best dealt with by the legislature. His opinion

included the following:

“The creation or recognition by courts of a new private right may work serious

injury to the general public, unless the boundaries of the right are definitely

established and wisely guarded. In order to reconcile the new private right with the

public interest, it may be necessary to prescribe limitations and rules for its

enjoyment; and also to provide administrative machinery for enforcing the rules”.

3. Rural Telephone Service Co v Feist Publications Inc

Rural Telephone Service Company, Inc. is a telephone cooperative providing services

for areas in northwest Kansas, with headquarters in the small town of Lenora, in

Norton County. The company was under a statutory obligation to compile a phone

directory of all their customers free of charge as a condition of their monopoly

franchise.

Feist Publications, Inc. specialized in compiling telephone directories from larger

geographic areas than Rural from other areas of Kansas. They had licensed the

directory of 11 other local directories, with Rural being the only hold-out in the

region. Despite Rural's denial of a license to Feist, Feist copied some 4000 entries

from Rural's directory. Because Rural had placed a small number of phony entries to

detect copying, Feist was caught.

The ruling of the Court was written by Justice O'Connor. It examined the purpose of

copyright and explained the standard of copyrightability as based on originality.

It is a long-standing principle of United States copyright law that "information" is not

copyrightable, O'Connor notes, but "collections" of information can be. Rural claimed

a collection copyright in its directory. The court clarified that the intent of copyright

law was not, as claimed by Rural and some lower courts, to reward the efforts of

persons collecting information, but rather "to promote the Progress of Science and

useful Arts" (U.S. Const. 1.8.8), that is, to encourage creative expression.

Since facts are purely copied from the world around us, O'Connor concludes, "the sine

qua non of copyright is originality". However, the standard for creativity is extremely

low. It need not be novel, rather it only needs to possess a "spark" or "minimal

degree" of creativity to be protected by copyright.

In regard to collections of facts, O'Connor states that copyright can only apply to the

creative aspects of collection: the creative choice of what data to include or exclude,

the order and style in which the information is presented, etc., but not on the

information itself. If Feist were to take the directory and rearrange them it would

destroy the copyright owned in the data.

The court ruled that Rural's directory was nothing more than an alphabetic list of all

subscribers to its service, which it was required to compile under law, and that no

creative expression was involved. The fact that Rural spent considerable time and

money collecting the data was irrelevant to copyright law, and Rural's copyright claim

was dismissed.

4. Burlington Home Shopping Pvt Ltd v Rajnish Chibber & Anr

Plaintiff was a mail order service Company. The business of the Plaintiff was to

publish mail order catalogues dealing with consumer items which were posted to the

select list of Plaintiff’s clients. A major investment in this regard was compilation of

client list/customer database. Plaintiff had developed a list of clientele/customers

database over a period of three years which was always in the gradual process of

compilation. The Defendant was an employee in the Plaintiff Company. After leaving

the employment of the Plaintiff, Defendant started his own business similar to as that

of the Plaintiff. He had also managed to get a copy of database of the Plaintiff and

started to use the same for his own purpose.

Plaintiff’s CaseThe database is an original literary work within the meaning of

Section 2(o) of the Copyright Act, 1957 and the Copyright in the same vests with the

Plaintiff and therefore any unauthorized use or substantial reproduction of the same is

an act of infringement of Copyright of the Plaintiff under the Copyright Act, 1957.

Defendant’s CaseThe database which the Plaintiff is referring to has been developed

by the Defendant and therefore there is no infringement of Copyright.

The Delhi High Court allowed copyright protection to a database solely on the ground

that the author had devoted time, money, labour and skill in creating it, even though

there was no uniqueness in the arrangement of the data.18