Databases are a crucial part of digital curation, whether as part of the toolkit for curating data or as entities to be curated themselves. Ownership of Intellectual Property (IP) in a database and the associated rights it provides have a massive impact on acts that can be carried out in relation to a database. A thorough understanding of what these rights are, when they arise, and how they operate is necessary to be known. It is necessary not only for avoiding infringement of third-party rights but also for recognizing the rights in databases, thereby maximizing the potentiometer for access, exploitation, and dissemination.
The TRIPS Agreement entails that Copyright Protection extends to databases and other compilations if they constitute intellectual creation under the selection or arrangement of their contents, even if some or all of the contents do not themselves constitute materials protected by copyright. Many countries act following this requirement, as databases are protected by copyright if this condition is met, and there is no separate Intellectual Property Right (IPR) protecting databases (or any aspects of them) that does not meet the condition for copyright protection. The database right extends protection over databases. It does not depend on the condition required for copyright protection, and is recognized only in a small number of jurisdictions, most notably the European Union.
Understanding What a Database Is
A database can be defined as “a collection of independent works, data, or other materials, which are arranged in a systematic or methodical way and are individually accessible by electronic or other means.” It is a broad definition, which covers traditional mailing lists, lists of customers and telephone directories, encyclopedias, and card indexes, whether held electronically or in paper form. There is, however, a distinction to be drawn between a database and its different components. A database right protects the collection of data, not its constituent elements. These elements may or may not be protected in their own right separately from any protection afforded to the database as a whole.
Any software, which is used in the making or operation of a database, is specifically excluded from protection as database software and instead generally protected by copyright as a literary work. Nevertheless, as software is often developed in modular form, it is possible that in some cases, a collection of software modules may attract protection as a database. Also, some elements of a computer program (for instance, on-screen look-up tables, which users may search to find information) may constitute a database.
Databases are protected in the following ways:
- Under the Law of Copyright of a Particular Country – This involves copyright protection for the intellectual creation involved in the selection and arrangement of materials. It is for those databases that meet the requirement for ‘creativity’ of the work and are known as ‘creative databases.’ Database copyright protects the structure of a database and not the contents and protects the recorded form of the database.
- Under Specific Database Rights Legislation (For example, EU, UK) – This is sui generis protection for “an investment (in human and technical resources and effort and energy) in the obtaining, verification, or presentation of the contents of the databases.” While such databases may not be creative, they require a quantitatively or qualitatively substantial investment in terms of resources and/or time spent and are therefore protected and known as ‘non-creative databases.’ In some nations, such as in the USA, there is no proper legal protection for non-creative databases. Unlike database copyright, the separate database right protects the contents of a database. The same restricts the extraction or re-utilization of the whole or a substantial part of the contents without the owner’s permission.
- Both as Literary Copyright Work and a Separate Database Right
If a set of data comes within the definition of a database, it will qualify for protection in its own right under the Databases Regulations if there has been a ‘substantial investment’ in obtaining, verifying, or presenting the contents of the database. Investment covers financial, human, or technical investment and substantial investment is interpreted in terms of quantity or quality or a combination of both.
It is also imperative to note that there is a distinction between a database and its different parts, which may be protected in their own right separately from the protection that the database may have as a whole. For example, the EU Directive does not protect the software used to create the database or for the material contained in the database. As such, any software used in making or operating a database is specifically excluded from being protected as a database and instead is normally protected by copyright as a literary work. However, as software is often developed in modular form, there may be some instances where software modules could be protected as a database. Similarly, a compilation that does not satisfy the definition of a database may still be protected by copyright as a literary work.
Copyright is the IPR that protects the expression of ideas or information. There is often confusion around the subsistence of copyright in a database. A database may attract copyright protection but only in some limited circumstances. Firstly, the structure of a database may be protected if, because of the selection or arrangement of the contents, it constitutes the author’s 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 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 the copyright is ‘the author,’ which in the case of a database is the person who creates the database.
Comparing Database Rights with Copyright
|Ownership||The copyright owner is the person who creates the work except for a copyrighted work created by an employee in the course of his or her employment, in which case, the employer is the first owner of the copyright.||The maker of the database is the first owner. The person who takes the initiative in obtaining, verifying, or presenting the contents of a database and assumes the risk of investing in that obtaining, verification, or presentation – is the first owner.
If the database is made by an employee in the course of his employment, the employer will be regarded as the maker and the owner of the database right, subject to any agreement to the contrary.
|Infringement||Infringement will arise by temporarily or permanently reproducing the database, translating, adapting, or altering the database, distributing or communicating to the public its copies without authorization of the owner.||A person infringes a database right if he extracts or re-utilizes all or a substantial part of the contents of a protected database without the consent of the owner. However, extracting or re-utilizing a substantial part of the contents can result from the repeated and systematic extraction or re-utilization of insubstantial parts of the contents of a database.|
|Remedies||Remedies for infringing materials or materials used to create infringing copies include an injunction prohibiting further infringement, damages for the loss incurred, an account of the profit made, the right to seize the infringing articles, and order for the delivery up by the infringer of the infringing articles.||The remedies for infringement are broadly the same as for copyright and include equitable remedies together with damages and an order for the delivery up or seizure of copies that have infringed the database right. The claimant can also seek an account of profits as well as damages (depending upon the jurisdiction).|
Conclusion: Effectively Understanding the Rights and Obligations in Databases
Any person who creates, organizes, or administers databases or extracts or re-utilizes the contents of databases belonging to others, should examine his approach to the use of such data and take any necessary practical steps. Following are the best practices to be kept in mind when it comes to dealing with databases:
- Consider if the database potentially qualifies for protection. If so, does it attract copyright or database rights protection?
- Who is the owner of the database? Are there any licenses required for using the database, and should an assignment of rights in such a database be obtained?
- Review contracts relating to commissioned databases and employment contracts. Do such contracts deal expressly with ownership or assignment of copyright and database rights?
- Update databases regularly.
- Protect against infringement by using copyright notices such as ©, ‘all rights reserved,’ or a text stating that the set of data may be protected by database rights.
- Keep a record of the ‘financial, human, or technical resources’ put into a database as proof of substantial investment to ensure that separate investment in the organization and arrangement of the database itself is made in addition to any investment in the creation of the data.