Intellectual Property Database Rights
What is meant by a database?
A database has been 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.
What will be included within this definition?
The following things will be included within the definition of a database:
- Mailing lists
- List of customers
- Telephone directories
- Card indexes
Please note that a database is the information gathered together in one of the above forms and will be provided protection as a whole database. The individual elements will not be provided protection as a database and will only be the subject of intellectual property protection if they themselves qualify through some other intellectual property right.
How is a database protected?
A database is afforded protection as an intellectual property right by one of the two following ways:
- Under the laws of copyright found in the Copyright Designs and Patents Act 1998
- In its own right as a database using the Copyright and Rights in Databases Regulations 1997
Copyright Designs and Patents Act
Under the Copyright Designs and Patents Act 1998 databases are regarded within the class of literary works. They receive protection for the selection and / or the arrangement of the contents of the database.
Test of Originality
As is the case for any work to receive protection as a copyrighted work the work must be original. This means that the contents of the database must be original. This often is a strange concept for a collection of data but a test has been established which states that the work will be original by reason of the selection or arrangement of the contents of the database constitutes the author’s own intellectual creation.
Time, skill and effort
In order for there to be originality and for copyright to therefore exist the author must have directed his time, skill and effort to the selection and arrangement of the database and shall not merely be gathering information.
Therefore information that has simply been collected and arranged in alphabetical order will not meet the test of originality and will therefore not be afforded copyright protection.
What if the information does not fall within the definition of a database?
Under the Copyright Designs and Patents Act there is copyright protection for tables or compilations. In order to receive copyright protection under the Act however they will again be subject to the usual test of originality in that the author must have used his own skill and effort in creating the table or compilation.
How long will this copyright protection last?
If a database is to be provided with copyright protection under the Copyright, Designs and Patents Act this will run for a duration of 70 years from the end of the calendar year in which the author dies.
If I ask a member of my staff to produce a database will I own it?
As is the case in relation to all forms of copyrighted work the owner of the copyright is the author or the person who has created the work. However, if this work has been undertaken by an employee during the course of his normal employment then it will be the employer who owns the copyright in the work.
What rights will I be given in relation to the copyrighted work?
The owner of the copyright is provided with certain rights in relation to the use and the exploitation of the work and is also provided with the right to prevent any other person from using the work in any means.
Copyright and Rights in Databases Regulations 1997
If a set of data falls within the above definition of a database protection will be provided for it under the Copyright and Rights in Databases Regulations. This will be provided regardless of whether it benefits from copyright protection as a literary work.
What needs to be established?
In order for a database to be provided with protection by the Regulations there must have been a substantial investment in obtaining, verifying or presenting the contents of the database.
Definition of substantial investment
Investment is defined as any investment whether the resources used is financial, human or technical. Substantial can be in relation to either quality or quantity and in some cases both.
It is not enough for their simply to be some form of investment, this investment must have been substantial.
It has been confirmed by the European Court of Justice that database rights will only exist where the maker has invested substantially in obtaining or verifying data that has come from independent sources.
What happens if I create the data myself?
If you invest in creating the data this will not automatically create a protectable database right. You invest substantially in the organisation and arrangement of the database for it to confer protection under the Regulations.
Establishing ownership of a database under the Regulations is a similar process than that of establishing ownership of a copyrighted work under the Copyright, Designs and Patents Act. As with copyright the owner of the work will be the author the owner of a database will be the maker of the database.
The maker of the database is defined in the regulations as 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”.
The difference between the two lies in the definition of a maker. Using the above definition it is clear to see that the maker of a database will be held to be the person who has commissioned the database to be produced as they assume the risk and most often will specify which information will be gathered and how it must be presented.
How long will a database right last?
A database right is an automatic right and will last for 15 years from the end of the year in which the database was completed or alternatively if it was published during that period it will last for 15 years from the end of the year in which it was first made available to the public.
What if I make changes to my database?
If substantial changes are made to a database then the 15 year period of protection will begin again. However, the changes would have to be many including additions and deletions for this to be held that substantial re-investment had been made on the database.
When will infringement occur in relation to a database?
Infringement will occur if a person extracts or re-uses all or a substantial part of the contents of a database afforded protection under the Regulations without the consent of the owner of that database.
If someone continues to extract or re-use insubstantial parts of a protected database over a prolonged period of time this can result in it being regarded as a substantial part for the purposes of establishing infringement.
The Regulations specify a number of permitted acts which will not constitute infringement of a database right. A database made available to the public will not be infringed using the defence of fair dealing, provided that the source of the database is indicted, when a substantial part of the database has been extracted or re-used for the following purposes:
- Teaching or research
- Not for commercial purposes
- Copyright or Database Right
Following confirmation by the European Court of Justice the database right under the Regulations is not as wide as that provided by Copyright under the Copyright, Designs and Patents Act and also it does not last as long many people wish to rely on the copyright rather than the database right. Both rights occur automatically and if a database qualifies for both it will be preferable for the creator to rely on the copyright.