Database Rights

Table of Contents

Databases

Databases are a collection of data or other material arranged systematically and individually accessible by electronic or other means. It may be electronic or in tangible form.

A database may refer to any materials. It may be electronic or manual. It may be a collection of data works or other materials. It may be written, visual or graphic. It prospectively covers a wide range of matters.

The Copyright Act protects the selection or arrangement of content in a database. The database must have an intellectual element so that a mere organisation which is numerically or automatically made is likely to lack the necessary skill to qualify for protection.

Compilations may readily attract copyright. If there is an element of skill in the selection, the requisite criteria for copyright will usually be met.

There is a separate right in a database which subsists for 15 years which is separate from the compilation right. This applies where a person has invested significant time and effort and prevents extraction and reuse of the database content for a period of 15 years.

There may be an overlap between databases and literary copyright. Under the pre-2000 legislation, many databases would have qualified as literary works. However, the 2000 legislation sought to distinguish between databases and literary works by limiting the definition of the latter.

Copyright and Database

Copyright usually subsists in an original database. As with literary copyright, copyright protection does not extend to the ideas and principles which underlie the work, procedures, methods of operation or mathematical concepts. The database right is without prejudice to rights which may exist in the content.

An original database means a database in any form which by reason of the selection or arrangement of its contents, constitutes the original intellectual creation of the author.A computer program used in the making or operation of databases is not regarded as a database.

The person entitled to copyright protection is the individual or individuals who made the database. The period of protection of copyright for a database is 70 years from the date of death of the author. Similar provisions as apply in respect of literary copyright apply to the commencement and revival of this copyright.

Work in the database may be copyright protected or not. Short pieces of information such as names and other particulars may be too insubstantial for protection by copyright. In some cases, they will be protected by data protection legislation and the persons referred to may have significant rights.

Database Right

There is a separate database right in respect of databases compiled with significant investment by way of human and technical resources, time and energy in obtaining verification of the presentation of the contents. They need not be creative.

What is compiled may or may not constitute copyright material protectable in itself. The database may be electronic or manual. There must be some skill and investment of time in compiling the database. The author of the database is the person who creates it.

The database owner enjoys the right to prevent reproduction, translation, adaption arrangement or other alteration, public distribution, public communication, performance or display. It is an infringement to make the work available to the public, adapt or copy the work.

Lawful users may use and extract insubstantial parts of the database. This is valid, notwithstanding a contract to the contrary. However, other copyrights must not be infringed.

The database right seeks to protect the skill of the person who creates it in making the compilation and selection. The degree of effort and skill is not necessarily definitive. As with literary copyright, the extent of the database need not be significant.

The compilation and selection of the information in the database must be as a result of the maker’s skill and judgement. It must be the author’s own intellectual creation.

Acquiring the RIght

The “database right” subsists where there has been a substantial investment in obtaining, verifying or presenting the contents of the database. The owner of the database right may undertake or authorise others to undertake certain acts in the State in relation to the database, being acts which are designated as acts restricted by the
database right.

A 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 shall be regarded as the maker of, and as having made, the database. Where a database is made by an employee in the course of employment, the employer is regarded as the maker of the database, subject to any agreement to the contrary.

The special database right applies to EU citizens, residents or domiciled persons, or businesses established in an EU state.

Rights of Database Holder

Reproduction in whole or in part of the database is restricted. Adaptations, arrangements, translations, alterations and distributions to the public are restricted.

The use of the database is restricted save limited lawful use. Where the database is available for use, then it may be used in accordance with the terms of the permission. This may require a licence or subscription.

There are some limited statutory exceptions to the right in the context of certain fair dealing and defined educational and non-commercial purposes. It is not an infringement of the copyright in an original database for a person who has the right to use the database or any part thereof, whether under a licence to undertake any of the acts restricted by the copyright in the original database or otherwise, to undertake, in the exercise of that right, anything which is necessary for the purposes of access to or use of the contents of the database or part thereof.

The owner of the database right may extract or reuse parts of the database or authorise others to do so. A substantial extraction or multiple extractions of insubstantial parts may constitute infringement if the use is prejudicial to the interests of the owner.

The owner of the database right has the right to undertake or to authorise others to undertake all or any of the following acts in relation to all or a substantial part of the contents of a database

extraction, or
re-utilisation,

and those acts are acts restricted by the database right.

Term

The database right expires 15 years from the end of the calendar year in which the making of the database was completed. Where a database is lawfully re-utilised before the expiration of the period, the database right in the database expires 15 years from the end of the calendar year in which the database was first so re-utilised.

Any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment shall qualify the database resulting from that investment for its own terms of protection.

Customers lists may constitute databases when the necessary investment is put into obtaining the information concerned. There must be an investment in obtaining and verifying the data and in organising and arranging it. The 15 year period runs from the end of the year in which the database is completed.

Licensing

The database maker has the exclusive right to do or permit others to extract or reuse a substantial part of the database. Insubstantial parts may be extracted for any purpose provided it does not infringe other copyright and related rights.

Where, under an agreement, a person has a right to use a database, any term or condition in the agreement is void in so far as they purport to prevent that person from extracting or re-utilising insubstantial parts of the contents of the database for any purpose.

Exceptions

There are exceptions from the database right in respect of

fair dealing with this substantial part of the purpose of illustration in the course of education (provided the source is acknowledged)
use in parliamentary or judicial proceedings for the purpose of reporting the copying of information and public records
material open to the public or on a statutory register acts done under statutory authority

Infringement

The database right is infringed by a person who, without the licence of the owner of the database right, undertakes or authorises another to undertake either of the acts restricted by the database right. The repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database which conflicts with the normal exploitation of the database or which prejudices the interests of the maker of the database is deemed to be extraction or re-utilisation of a substantial part of those contents.

Infringement will arise by temporarily or permanently reproducing the database, translating, adapting or altering the database or distributing or communicating to the public of copies of it without the authorisation of the owner.

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 profits made, the right to seize the infringing articles and an order for the delivery up by the infringer of the infringing articles.

The remedies for infringement are similar to those for database copyright. They include damages, an account of profits, equitable remedies and orders order for the delivery up or seizure of infringing copies.