“Big Data” refers to datasets whose size is beyond the ability of typical database software tools to capture, store, and analyze.[1] In a recent speech delivered at the Canadian Institute for the Administration of Justice, Patricia Kosseim, Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis Branch at the Office of the Privacy Commissioner of Canada, remarked that while Big Data is not a new technology, it is a new technological trend that allows for the “(processing) of huge volumes of data across varying sources, using much more powerful algorithms, to identify underlying patterns and correlations that can predict future outcomes.”[2] It comes as no surprise, therefore, that businesses, advertisers, policy-makers, and researchers are increasingly using Big Data to spot and exploit trends.

This rise in the collection and use of Big Data has led many to question whether current Canadian law can meet the need to regulate an industry where private information can be exposed and capitalized upon. Companies and technology professionals are also keen to learn how and to what extent they can protect and use this increasingly valuable economic asset.

This article is the first of a three part article which will address the areas where the law and Big Data intersect – intellectual property, regulatory law, and contract.

IP Ownership & Big Data

Copyright in Databases

It is an established principle of Canadian copyright law that copyright cannot exist in ideas or data alone.[3] However, it can apply to certain forms that data takes such as a tables, graphs, or databases.

The Copyright Act[4] (the “Act”) is the governing statute for copyright law in Canada. Under the Act, copyright exists “in every original literary, dramatic, musical and artistic work”. After the 1993 North American Free Trade Implementation Act,[5] the Act was amended to protect “compilations”. The definition of “compilations” includes works that “(result) from the selection or arrangement of data.”[6] Therefore, assessing the originality of the compilation of data is key to determining whether or not copyright exists in a database.

This question was addressed at the Federal Court of Appeal in the 1997 case Tele-Direct (Publications) Inc. v. American Business Information, Inc.[7] Tele-Direct claimed copyright in

respect of the organization of subscriber information and the collection of additional data contained in “Yellow Pages” directories published by Tele-Direct. Two of the main issues before the court were: (1) what was the correct approach for assessing the originality of a compilation, and (2) whether the compilation involved a sufficient degree of skill, judgment, or labour to qualify for copyright protection.[1]

The Court held that the selection or arrangement of data results in a protected compilation only if the end result qualifies as an original intellectual creation. For a compilation of data to be original, it must be a work that was independently created by the author, and display at least a minimal degree of skill, judgment and labour in its overall selection or arrangement.[2]

In 2004, the issue of originality in the context of copyright reached the Supreme Court in the landmark case CCH Canadian Ltd. v. Law Society of Upper Canada.[3]  While the case was not directly about databases, it dealt with the threshold for “originality”. In the case, the Court rejected both the “sweat of the brow” test for originality, as well as the U.S. favoured test that originality requires a work to be independently created and possess some minimal degree of creativity.[4] Instead, the Court held that for a work to be considered “original”, it must be the product of an author’s exercise of skill and judgment.[5] Furthermore, the skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.[6]

The Act entitles the copyright owner to “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever”.[7] If a copyright is infringed, the owner of the copyright is also entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.[8]

While certain protections for database owners exist under the Canadian copyright regime, claims for copyright infringement of databases raise practical problems. If copyright infringement only occurs when a “substantial” part of a database is copied (as outlined in the Act), what if only some information is copied? Furthermore, merely using or accessing a database is unlikely to garner protection under the Act either.

Copyright in Software

While information in a database cannot be copyrighted, data-integration software, database-management systems, and data analytics software can be copyrighted as “computer programs” under the Act.

A “computer program” is considered a “literary work” for purposes of the Act, and is defined as “a set of instructions or statements, expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result.”[9]

Therefore, infringement would occur where a computer program is copied without authorization from the owner of the copyright.

The Act provides some exceptions for use of computer programs that would otherwise be infringement under the Act. This includes copying for purposes of a backup,[1] as well as copying a program once for the purposes of making it compatible with a computer that is solely for personal use.[2] The term “software” has also been given a broad meaning to include data files.[3]

It is important to note that the same standards of originalism apply when determining whether a computer program is subject to copyright protection. For example, in Delrina Corp. v. Triolet Systems Inc., the Ontario Court of Appeal held that computer programming that is dictated by the operating system or reflects common programming practices is not original expression and will not receive copyright protection.[4] The Federal Court has also held that as a general principle, the owner of the copyright in a computer program does not have copyright in the user’s data, unless there is an agreement stating otherwise.[5]

No Database Right in Canada

There is no database right in Canada – meaning additional protections are not afforded to the original creator of a database. This is a marked difference from European countries that adopted the EU Database Directive.[6] The Directive provides that databases which “by reason of the selection or arrangement of their contents constitute the author’s own intellectual creation” are protected by copyright, and any temporary or permanent reproduction is prohibited.[7]

While some lobbying efforts have occurred to institute a similar policy in Canada,[8] the strongest statutory IP protections for databases continues to flow from the Copyright Act and surrounding case law.

Patentability of Software

Canada’s Patent Act[9] does not specifically mention “software” and is generally considered by the Patent Office to be an “abstract scheme” and consequently not an invention that can be patented.[10] However, if software does more than just calculations, it may be patentable.

Specifically, computer programs integrated with hardware could receive patent protection, as could programs that produce an outcome based on recovered data.[1]