Databases are valuable commercial assets that businesses are increasingly looking to exploit in their own right. Given their inherent and financial value, together with the money and time invested in their creation, it is crucial that businesses understand the rights surrounding their databases.
Does your database qualify for protection?
A database is defined 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 encompasses mailing lists and lists of customers as well as document management systems and some websites.
Databases are protected in two ways:
- under the law of copyright and the specific rules that apply in relation to databases; and
- under the UK Copyright and Rights in Databases Regulations 1997.
Databases are treated as a class of literary works and may therefore receive copyright protection for the selection and/or arrangement of the contents provided that they were recorded in some medium and were the “author’s own intellectual creation”. A database will only be original if “by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation”.
Pursuant to UK law, copyright in a database lasts for 70 years from the end of the calendar year in which the author of the database dies. The copyright owner is the creator of the database, therefore businesses need to exercise caution when engaging a contractor to create a database for it. The contractor is likely to be the owner of copyright in the database and if a business wants to own the copyright it must enter into an agreement with the contractor which contains an assignment of copyright.
The principles of infringement of database copyright are the same as those for other types of copyright work.
If a set of data comes within the definition of a database, it will qualify for protection in its own right under the Databases Regulations if there has been a “substantial investment” in obtaining, verifying or presenting the contents of the database. Investment covers “financial, human or technical” investment and substantial is interpreted in “terms of quantity or quality or a combination of both”.
In contrast to copyright, the maker of a database is the first owner, with the maker defined 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”.
Database right lasts for 15 years from the end of the calendar year in which the making of the database was completed. Although this is shorter than the duration of copyright, if a “substantial change” to the contents of a database which constitutes a “substantial new investment”, the amended database will qualify for a new 15-year term. In effect, this means that an indefinite term of protection is available for the many databases that are continually updated.
A database right is infringed if a person extracts or re-utilises all or a substantial part of the contents of the database without the owner’s permission. In addition, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of the database may also amount to the extraction or the re-utilisation of a substantial part of those contents.