UK Database Law

Introduction

What is a database?

A database is a collection of information stored in a computer in a systematic way, such that a computer program can consult it to answer questions. The software used to manage and query a database is known as a database management system (DBMS).

For the purposes of English law, s.3A Copyright, Designs and Patents Act 1988 defines a database as a collection of independent works, data or other materials which are:

arranged in a systematic or methodical way, and
individually accessible by electronic or other means

As such, under English law, a database includes data held electronically and, notably, data held in a non-electronic format, e.g. paper records.

Legal protection of databases in England & Wales

The law in England and Wales recognises the existence of two separate legal rights in databases: (i) copyright; and (ii) database right.

Copyright is available to certain, but not all, databases. The key criterion for determining the availability of copyright to a database is whether the database qualifies as a "literary work".

Database right is available to all databases.

Copyright

Copyright in England and Wales is governed by the Copyright, Designs and Patents Act 1988. For the purposes of this wikibook this will be referred to as the 1988 Act.

Under s.1(1)(a) of the 1988 Act, copyright is stated to "subsist", i.e. exist, in "original literary works".

"Literary works" are defined in s.3(1) of the 1988 Act as being "any work, other than a dramatic or musical work, which is written, spoken or sung".

Copyright will exist in database if it is sufficiently original; in order to be a literary work, “the selection or arrangement of the contents of the database” must constitute the author's own intellectual creation s.3A of the 1988 Act.

Existence

Copyright arises automatically in a work that meets the criteria outlined below. There is no need to register copyright in a database with a central organisation.

Originality

s.1(1)(a) requires the database to be original.

"Original" for the purposes of copyright means that the database is the author's own work, i.e. not copied from the work of another party.

A common misconception is that an idea can be protected by copyright. This is not correct. Copyright protects that expression and form of an idea, not the idea itself. It is equally the originality of the expression and form that matters, not the idea.

Minimum effort

A literary work does not require significant effort in order to obtain copyright protection. Any writing will attract copyright, provided it is substantial enough to constitute a work.

Recorded

In order to obtain copyright, data must be recorded. The nature of databases is such that this requirement will always be satisfied.

Ownership

Under s.11(1) of the 1988 Act, initial ownership is owned by the author or co-authors of a database.

Under s.11(2) of the 1988 Act, if the author of the database is an employee, copyright in the database is owned by his employer. This is subject to the following provisions:

the database must have been created in the course of the employee's employment
there must be no agreement to the contrary between the employer and employee, e.g. an agreement granting the employee copyright in the database

If a database is commissioned, copyright rests with the author, not the person, company or organisation whom commissioned the database. An agreement whereby a third-party is commissioned to create a database should contain a clause providing for assignment or licence of copyright work. In the case of Blair v Alan S Tomkins & Anor (1971) 21 QB 78 it was held that in the absence of licence, one will usually be implied.

Note, in R Griggs Group Ltd v Evans (2003) EWHC 2914. it was held that the party who commissioned a database may be entitled in equity to beneficial title in the database if a mere licence may not give them enough rights to stop the work being used by a rival.

Duration

Under s.12 of the 1988 Act, copyright will protect a database for the life of the author (or employee) plus 70 years.

Rights

Under s.16 of the 1988 Act, copyright provides the owner of a database with the right to prevent another party copying the database.

s.16 equally provides the owner of a copyright with exclusive rights to:

copy the work (see s.17)
issue copies of the work to the public (see s.18)
rent or lend the work to the public (see s.18A)
perform, show or play the work in public (see s.19)
to communicate the work to the public (see s.20)

Infringement

Copyright in a database is infringed if a “substantial part” of the database is copied by another unauthorised party.

The question of what is a substantial part is qualitative.

Primary infringement

A party who commits a primary infringement of copyright in a database is liable regardless of state of mind.

Copying can be indirect – i.e. a result of seeing a copy of the original work – s.16(3).

Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright – s.16(2)

There is a rebuttable presumption of copying if the defendant's work is similar to that of the claimant and the defendant has access to the claimant's work.

Secondary infringement

Requires knowledge, or reason to believe, that one is dealing with an infringing copy.

Copies are made without the copyright owner's permission.

Includes:

people who import infringing goods – s.22
people who sell infringing goods – s.23

Defences

Fair dealing:

for purposes of research or private study – s.29
for purpose of criticism or review – s.30(1)
for the purpose of reporting current events – s.30(2)

Remedies

Damages for primary infringement – s.97

Note, this remedy is not available if a defendant did not know and had no reason to believe that the database was copyright

Delivery up for primary infringement – s.99

The database owner may seize offending copies of the database – s.100.

Normally this remedy is only used against street traders as the right excludes business premises.

An infringing party may face criminal liability for making or dealing with infringing articles – s.107

Delivery up of infringing copies – s.108

Destruction of offending copies – s.114

Order preventing importation of infringing copies – s.111

Database Right

Database right is a sui generis right that has provided protection for databases in England and Wales since 1997.

Prior to 1997 the view in England and Wales was that databases were adequately protected by copyright (see previous). This conflicted with the wider view in continental Europe that databases were functional documents, not literary works, and as such could not be protected by copyright.

The European Union passed Council Directive 96/9/EC on the Legal Protection of Databases ('the Database Directive') in order to standardise the legal protection provided to databases across the EU.

In England and Wales, the Database Directive was implemented by the Copyright and Rights in Databases Regulations 1997 SI 1997/3032 ('the 1997 Regulations'). The 1997 Regulations amended the 1988 Act to limit the extent to which copyright applies to databases (s.3A).

Existence

Under Reg.13 of the 1997 Regulations, database right subsists in a database if "there has been a substantial investment in obtaining, verifying or presenting the contents of the database".

In order to qualify for database right in English law, one or more of the creators of the database must reside in the European Economic Area, see Reg.18.

Like copyright, database right will arise automatically in databases that meet the criteria provided Regs.13 and 18. The creator of a database right does not need to register the right with a central body.

Ownership

Under Reg.15 of the 1997 Regulations, the maker of the database is the first owner of it.

The maker is defined in Reg.14(1) of the 1997 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 shall be regarded as the maker of, and as having made, the database".

Regulation 14(2) provides a caveat that "where a database is made by an employee in the course of his employment, his employer shall be regarded as the maker of the database, subject to any agreement to the contrary". This is similar to the position with copyright.

Duration

Regulation 17(1) of the 1997 Regulations provides that "database right in a database expires at the end of the period of fifteen years from the end of the calendar year in which the making of the database was completed".

Regulation 17(3) provides further that "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 term of protection".

In effect, it is possible for databases that are updated regularly to obtain indefinite rolling protection from database right, i.e. every updated version of the database obtains 15 years protection.

Rights

Database right gives the owner the right to prevent copying and unauthorised use of the database.

Infringement

Under Reg.16(1) of the 1997 Regulations, "a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database".

Extraction, re-utilisation and substantial are defined in Reg.12.

Extraction is defined as "the permanent or temporary transfer of [the] contents [of the database] to another medium by any means or in any form".

Re-utilisation is defined as "making [the] contents [of the database] available to the public by any means".

Substantial is defined "in terms of quantity or quality or a combination of both".

Regulation 16(2) further provides that "the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents".

Defences

Fair dealing - Reg.20 of the 1997 Regulations:

extraction by a lawful user - Reg.20(1)(a)
extraction for purpose of illustration or teaching or for a non-commercial purpose - Reg.20(1)(b)
the source is indicated - Reg.20(1)(c)

Regulation 20(2) provides further exceptions to database right for public administration. These are detailed in Schedule 1 of the 1997 Regulations.

Links

Council Directive 96/9/EC on the Legal Protection of Databases, March 1996, eur-lex.europa.eu
Protection of Databases, ec.europa.eu

W:Sui generis database right