database right

The use of databases is widespread, but the legal implications of their creation and use are less known and potentially complicated. What is protected by amounts to database rights and what amounts to a database right infringement?

Database Rights

UK law recognises two forms of rights in databases. They are:

1. Section 3A of the Copyright Designs and Patents Act; and
2. Copyright and Rights in Databases Regulations 1997.

A database is defined means a collection of independent works, data or other materials which:

1. are arranged in a systematic or methodical way, and
2. are individually accessible by electronic or other means.

1. Copyright Designs and Patents Act

Databases are treated as a distinct class of literary works and may therefore receive copyright protection for the selection and/or arrangement of the contents under the terms of the Copyright, Designs and Patents Act 1998. In order for copyright protection to arise the selection and/or arrangement of the contents of the database must be original. The test of originality for databases is different than that for other literary works, such that a database will only be eligible for copyright protection if “by reason of the selection or arrangement of [its] contents” it constitutes the “author’s own intellectual creation”.

A literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation. This displaces the usual test for originality which applies to copyright works, which simply requires a de minimus level of skill, labour and judgment for copyright to subsist for copyright protection to arise.

It is the intellectual creativity which governs whether copyright exists, and it is the skill labour and judgment in the selection or arrangement of the elements which are the relevant elements of that creativity.  This prevent sweat of the brow copying of materials from elsewhere giving rise to protection of the database.

Even then, tables and compilations exist as separate forms of literary work which may be able to be protected as separate literary works. Protection under this head lasts for 70 years from the time of the death of the author.

2. Copyright and Rights in Databases Regulations 1997

A special breed of protection for databases was implemented in the UK by the Copyright and Rights in Databases Regulations 1997 (“Database Regulations”), following the passage of Council Directive 96/9/EC of 14 March 1996; this directive applies Europe, and required member states to implement their own local law to give effect to the directive for the legal protection of databases.

The Database Regulations create a property in databases where:

1. A person makes substantial investment in obtaining, verifying or presenting the contents of a database.
2. The database right exists irrespective of whether the contents of the database are they themselves protected by copyright.

Investment includes "any investment, whether of financial, human or technical resources" and substantial means "substantial in terms of quantity or quality or a combination of both".
The first owner of the database right is:

1. The person who obtains, verifies or presents the contents of a database, and assumes that risk;
2. The person doing so is employed, the employer owns the right;
3. Where two or more persons collaborate to obtain, verify or present the selected data, those persons jointly own the right.

The right lasts for 15 years from the time that the database was first (1) made available to the public, or (2) created, whichever is the earlier. If the database is subsequently substantially updated, a new database right will exist in that new version and the clock is re-set and the term of database right will expire 15 years from the date when it was first made so available.

What Databases are Protected?

The language of the directive and Data Regulations can be difficult to penetrate. What is relevant to establish a protectable database is investment, and investment of a particular kind. [Rather than the cost to build the database, it is the cost to populate the database and maintain those populated entries which is the relevant investment.] This sui generis database right provides rolling right, where the database continues to be protected provided that adequate investment is made to verify the correctness of the entries in the database, and update (add/delete) it accordingly.

How databases are Protected: Infringement

Infringement of the database right takes place where a person, without the consent of the owner of the database right:

1. extracts: the permanent or temporary transfer of those contents to another medium by any means or in any form. Extraction refers to any unauthorised act of appropriation of the whole or a part of the contents of a database. The extraction may take place by a manual or automated process; or
2. re-utilises: making those contents available to the public by any means;

all or a substantial part of the protected database.

Repeated systematic extraction or re-utilisation of small parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.

Extraction in respect of a substantial part is evaluated qualitatively or quantitatively.

The legislation established a sui generis “database right” that arises where there has been a “substantial investment in obtaining, verifying or presenting of the contents of the database”, the aim of which was to prevent extraction and/or re-utilisation of the whole or a substantial part of the contents of the database.

Defences to Infringement

There are a number of permitted acts set out in the Regulations which provide defences to claims for infringement. A database right in a database which has been made available to the public is not infringed by:

1. data is extracted by a lawful (licensed) user of the database for teaching or research, and not for any commercial purpose, provided the source of the material is cited.
2. extraction and re-utilisation permitted when it is not possible by reasonable inquiry to ascertain the identity of the maker and it is reasonable to assume that the database right has expired;
3. the rights in the database have lapsed (after 15 years).

Remedies

The remedies available to a database owner for infringement of database right are the same as the remedies as provided under the 1988 Act for infringement of copyright, which include:

1. damages or an account of profits;
2. final injunction;
3. delivery up and destruction of infringing materials.