Database right

A database right is a sui generis property right, comparable to but distinct from copyright, that exists to recognise the investment that is made in compiling a database, even when this does not involve the "creative" aspect that is reflected by copyright.^[1] Such rights are often referred to in the plural: database rights.

The TRIPS Agreement requires that copyright protection extends to databases and other compilations if they constitute intellectual creation by virtue of the selection or arrangement of their contents, even if some or all of the contents do not themselves constitute materials protected by copyright.^[2] Many countries act in accordance with this requirement, as databases are protected by copyright if this condition is met, and there is no separate intellectual property right protecting databases (or any aspects of them) that do not meet the conditions for copyright protection. The database right extends protection over databases which does not depend on the condition required for copyright protection, and is recognised only in a small number of jurisdictions, most notably the European Union.

Countries that recognise database rights

European Union

In European Union law, database rights are specifically coded (i.e. sui generis) laws on the copying and dissemination of information in computer databases. These rights were first introduced in 1996. On 11 March 1996 the Council of the European Union passed Directive 96/9/EC of 11 March 1996 on the legal protection of databases,^[3] 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. Each time a database is substantially modified, however, a new set of rights are created for that database. An owner has the right to object to the copying of substantial parts of their database, even if data is extracted and reconstructed piecemeal. Database rights under the EU are created automatically, vested in the employers of creators (when the action of creation was part of employment), and do not have to be registered to have effect.

Database rights are independent of copyright: The arrangement, selection, and presentation of the data may be protected by copyright, while the database as a whole can be protected by database right.^[4]

United Kingdom

On 1 January 1998, The Copyright and Rights in Databases Regulations 1997^[5] came into force, which implemented the EU Database Directive.^[6] These regulations made a number of amendments to the Copyright, Designs and Patents Act 1988 with respect to databases, a database being defined as

"a collection of independent works, data or other materials which ---

(a) are arranged in a systematic or methodical way, and

(b) are individually accessible by electronic or other means"^[7]

The regulations extend existing copyright law to databases, to the extent that they constitute "the author's own intellectual creation".^[8]

In addition, regulations 13 and 14 create a database right. Database rights automatically subsist if there has been a "substantial investment in obtaining, verifying or presenting the contents" of the database.

Such rights remain in force under regulation 17(2) until the end of the 15th calendar year from the date on which the database was first made available to the public. During that period, database right will be infringed by any person who, without consent, "extracts or re-uses all or a substantial part of the contents of the database", whether all at once or by repeated extractions of "insubstantial" parts.

On the other hand, any lawful user of the database has a right under regulation 19(1) "to extract or re-use insubstantial parts of the data for any purpose", and that right cannot be restricted by the database owner (regulation 19(2)). The term "substantial" is defined to mean "substantial in terms of quantity or quality or a combination of both".

Under the Brexit withdrawal agreement, database rights that existed before 1 January 2021 retain reciprocal recognition between the UK and EEA for their original duration, while those created on or after that date are only protected within the creator's jurisdiction - either the EEA or the UK.^[9]

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.^[10]

Russia generally follows the EU model, there are some differences.^[11]

Countries that do not recognise database rights

United States

Uncreative collections of facts are outside of Congressional authority under the Copyright Clause (Article I, § 8, cl. 8) of the United States Constitution, therefore no database right exists in the United States. Originality is the sine qua non of copyright in the United States (see Feist Publications v. Rural Telephone Service). This has not stopped database owners lobbying for the introduction of such a right, but so far bills to introduce it in the US have been prevented by the successful lobbying of research libraries, consumer groups and firms who benefit from the free use of factual information.^[12]

Brazil

In Brazil, Federal Law No. 9610 of 1998 (the Law of the authorial rights) confers database owners exclusive rights specifically for copying, distribution and translation of databases.^[13] The same law also states that this right is contingent upon the database being the result of an intellectual creation, which may be deemed so based on "the selection, organization, or disposition of its content".^[14] Therefore, consistent with international law and the position in many jurisdictions, legislation in Brazil may or may not offer copyright protection to databases, depending on how the database was developed.^{[citation needed]}

References

^ "The Copyright and Rights in Databases Regulations 1997". UK Government. A property right ("database right") subsists, in accordance with this part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. United Kingdom implementation of the EU directive. Section 13 (1).
^ Article 10.5, TRIPS Agreement. See WTO Overview of TRIPS Agreement
^ "Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases". 27 March 1996. Retrieved 27 August 2020.
^ Directive 96/9/EC, Article 7, paragraph 4
^ "The Copyright and Rights in Databases Regulations 1997".
^ "The Copyright and Rights in Databases Regulations 1997 - Part I.2, Implementation of Directive".
^ "Copyright, Designs and Patents Act 1988, section 3A (1)".
^ "Copyright, Designs and Patents Act 1988, section 3A (2)".
^ "Sui generis database rights". GOV.UK. UK government. 30 January 2020. Retrieved 7 April 2022.
^ "Юридическое бюро Юрьева - Protection of Databases in Russia". juryev.ru. Retrieved 27 August 2020.
^ Kalyatin, Vitaly (5 December 2011). "Problems of Database Protection in the Russian Federation". SSRN 2002715.
^ Merges, Robert P (2000). "One hundred years of solicitude: intellectual property law, 1900–2000". California Law Review. 88 (6): 2187–2240. doi:10.2307/3481215. JSTOR 3481215.
^ "Lei nº 9.610, de 19 de fevereiro de 1998". Brasil. Art. 87. O titular do direito patrimonial sobre uma base de dados terá o direito exclusivo, a respeito da forma de expressão da estrutura da referida base, de autorizar ou proibir: I – sua reprodução total ou parcial, por qualquer meio ou processo; II – sua tradução, adaptação, reordenação ou qualquer outra modificação; III – a distribuição do original ou cópias da base de dados ou a sua comunicação ao público; IV – a reprodução, distribuição ou comunicação ao público dos resultados das operações mencionadas no inciso II deste artigo.
^ "Lei nº 9.610, de 19 de fevereiro de 1998". Brasil. Art. 7º São obras intelectuais protegidas as criações do espírito, expressas por qualquer meio ou fixadas em qualquer suporte, tangível ou intangível, conhecido ou que se invente no futuro, tais como: (...) XIII - as coletâneas ou compilações, antologias, enciclopédias, dicionários, bases de dados e outras obras, que, por sua seleção, organização ou disposição de seu conteúdo, constituam uma criação intelectual.