An Introduction to Database Rights
History
Copyright is legal device that gives the owner the right to control how a creative work is used. Until several years ago the contents of a database could not be legally protected. Producers of databases that contained factual data could not claim copyright protection which made it impossible for them to prevent others from copying content. On 11 March 1996 the Council of the European Union adopted Directive 96/9/EG giving specific and separate legal rights (and limitations) to databases: database rights.
What is a Database?
A database is defined in the directive 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.” This broad definition could cover anything from mailing lists, repositories, directories and catalogues to telephone directories and encyclopaedias.
A database will be protected by database rights but its individual components (which may be factual data) may not.
What are Database Rights?
There may have been considerable effort in the creation of a database. This effort is known in intellectual property law as the “sweat of the brow (named after the idiom sweat of one’s brow). Database rights specifically protect this effort and investment. 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”. Metadata will be included in this investment. Infringement of a database right happens if a person extracts or re-utilises all or a substantial part of the contents of a protected database without the consent of the owner. Fair use and use for academic purposes apply to public databases.
Database rights last for fifteen years from the end of the year that the database was made available to the public, or from the end of the year of completion for private databases. Any substantial changes will lead to a new term of database rights.
The biggest database rights case to date was over William Hill Bookmaker’s reuse of the British Horseracing Board’s online database. In 2004 the European Court of Justice ruled that database rights were not infringed.
Other Protection
Databases are treated as a class of literary works and may also be given copyright protection for the selection and/or arrangement of the contents under the terms of the Copyright, Designs and Patents Act 1988. For this to happen the selection and/or arrangement of the contents of the database must be original and require the intellectual creativity of the author. Arrangement of a list of names in alphabetical order would not meet this standard.
If a database, table or compilation does attract copyright protection, this lasts for a period of 70 years from the end of the calendar year in which the author dies. Databases not in the public domain may also be protected under the law of confidence. The Data Protection Act 1998 will also apply to databases containing personal data.
Creating Databases
Those involved in the creation of databases should give consideration to:
- Whether a database qualifies for copyright/database right protection?
- Who is the owner of the database is (i.e. the institution or other)?
- What contracts apply to the creation of the database.
- Offering text/licences that specify how the data may be used.
- Keeping a record of the investment in a database.
Creators should also update databases regularly to ensure that the 15 year protection period recommences.
Further Information
Briefing documents on Introduction To Intellectual Property and Copyright [1] and An Introduction To Creative Commons [2] are also available.
References
- Introduction To Intellectual Property and Copyright, Cultural Heritage briefing document no. 38, UKOLN, <http://www.ukoln.ac.uk/cultural-heritage/documents/briefing-38/>
- An Introduction to Creative Commons, Cultural Heritage briefing document no. 34, UKOLN, <http://www.ukoln.ac.uk/cultural-heritage/documents/briefing-34/>
Filed under: Legal Issues
