Technology Advances and IPR UNIT 7 PROTECTION OF DATABASES Structure 7.1 Introduction Objective 7.2 Historical Background 7.3 Definition and Scope of Database Protection 7.4 Protection Mechanisms for Databases Limitations of Copyright Protection Need of Database Protection Law 7.5 Copyright Protection of Databases International Conventions and Agreements Regional Legislations 7.6 Sui-Generis Protection of Databases 7.7 National Legislations United States of America Australia China 7.8 Database Protection in India 7.9 Laws Governing Information Protection in India Information Technology Act 2000 Indian Copyright Act 7.10 Summary 7.11 Terminal Questions 7.12 Answers and Hints 7.1 INTRODUCTION The recent advances in biotechnology field have enabled scientists to carry out experiments on different life forms and they are even successful in mapping the DNA sequences of some of these forms. The technological and economic investments made in these kinds of experiments are very high and the investors are inclined to protect the results of these experiments. Many of these results are in the form of large databases. Other types of databases we encounter quite often are the directories, dictionaries, thesaurus, railway/airline schedules, weather reports etc. The geographical information in its many forms offers wide scope for creativity in data presentation. Such representation involves artistic expression on computer screens and in printouts, data models, and the integration of information, analysis of data, and the use of textual and tabular data. Due to the large demand for the databases and exorbitant costs involved in preparing them, there have been efforts towards protecting these databases as intellectual property rights. Many national laws have recognised databases as a subject matter of intellectual property rights and accorded them protection under copyright law or by sui-generis system. In the TRIPS Agreement also these provisions are made. In this Unit we will be discussing the evolution of database protection as intellectual property right and its present status. Objectives After studying this unit, you should be able to: • define Database; • describe the historical background of database protection; • explain the rationale behind database protection; • cite the short comings of copyright law in its application for databases; 38 Protection of Databases • discuss the database protections afforded by different countries like US, Australia, China and European Union; • explain the different laws available in India for database protection; and • list the salient features of Indian Information Technology Act, 2000. 7.2 HISTORICAL BACKGROUND The Feist Case, a landmark U.S. Supreme Court ruling in case of Feist Publishing, Inc. versus Rural Telephone Service Co. may be attributed to the beginning of the movement for data protection laws wherein inter alia it has been stated that mere collections of information could not be covered under copyright protection. Instead, “creativity in selection or arrangement” was required. Briefly, the Feist case embodied an issue “whether the copying the data of telephone book listings was an infringement of the copyright existed in the arrangement of that data?” The claim was that even though the data might otherwise fall outside of the protection of the copyright law, the arranger of that data was entitled to protection because of the time and energy expended in doing the arrangement, in this instance the telephone book listings. The Supreme Court said that the so-called sweat of the brow legal theory of The sweat of the brow protection was not a valid legal theory. The Court referred to the United States doctrine here refers to the efforts and investment made Copyright Act of 1976, section 102 (b), which states: by an entity towards compiling large data but In no case does copyright protection for an original work of authorship without showing originality extend to any idea, procedure, process, system, method of operation, in creation. concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. This opened a debate on the protection of the data and the arrangement of that data as one of the hot issues. This ruling stirred the database community throughout the world as this altered the landscape of copyright protection of factual compilations. They also began assuming that the present theory of copyright does not favour the protection of databases. There may be other theories that may be useful to the creator of such materials such as trespass, unfair competition and contract rights. All these theories are limited in their scope and subject to the contractual relationship between the parties. This raised a need of a thoughtful and practical analysis of copyright laws vis-à-vis database protection. As far as different copyright laws prevailing to different nations are concerned, they broadly intend to cover the original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated. Consequently, the facts themselves do not come under purview of copyright protection; however, compilation of factual information can be protected by copyright laws if the selection, coordination, or arrangement of data constitutes an original work of authorship. Eventually, the facts in a factual compilation may be freely copied. The computerised databases which contain enormous amount of facts in the form of factual compilations are vulnerable to be copied in another database in a matter of no time using the prevailing data processing technologies. Such instances thus paved a smooth and soothing way for a second competing database without incurring the cost and labour of producing it. 39 Technology Advances and IPR 7.3 DEFINITION AND SCOPE OF DATABASE PROTECTION A database is a collection of data arranged in a systematic way to facilitate and efficient retrieval of information to its users. Database Management System (DBMS), which administers the database is a software or computer programme distinct to database. In this era of computerisation and perpetual development, there are large number of Database Management System (DBMS) packages available in the market which administer the databases. Conventionally, database was collected and recorded in a file and kept in hard copy form. Compared to electronic database, conventional system of records collection was laborious and time consuming, hence inefficient. Unlike traditional databases, new digital databases can be compiled wholly by a computer in accordance with certain instructions or certain parameters with less or no human activity. Gradually, electronic databases became popular and so also their protection. The legal definition of a database arises within the context of database protection. According to European Commission’s Databases Directive, the legal definition of a database, for the purpose of intellectual property law, states that the database shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. U.S. Congressional bill (H.R. 354) defines it as information that has been collected and has been organised for the purpose of bringing discrete items of information together in one place or through one source so that persons may access them. Obviously, the definition does not intend to cover individual works which come under copyright. Other materials having a general nature include different kinds of expressed information. This will include not only literary and artistic works, but also databases of musical works, sounds and images. It may even include a web page itself. Precisely, a database does not have to consist of information which is stored electronically under these definitions, and can therefore include information which is recorded on paper. In the context of India, the word database itself appears in the Copyright Act, 1957 and the Information Technology Act, 2000. The closest definition of the term database is found in Section 43 Explanation (ii) of the Information Technology Act, 2000 which defines computer database to mean a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network. This definition appears to extend only to electronic databases. Section 2 (k) of the Information Technology Act, 2000 defines a computer resource to mean a computer, computer system, computer network, data, computer database or software. Section 2 (o) of the Copyright Act 1957 defines a literary work to include computer programmes, tables and compilations including computer databases. This definition appears to include even non-electronic databases. Indian copyright law embodies copyright protection of compilations as literary works, but does not stipulate the content of a compilation. The definition of a literary work also embraces computer databases, which under the Information Technology Act, 2000 involves audio and video. It may be argued that the electronic databases may comprise of collections that are not restricted to only literary and artistic works. This raises the question whether ‘database’ is intended to include an anthology of poems,