Databases play a crucial role in modern life, making it easier for programs to store, retrieve, and manipulate vast amounts of data. They eliminate the need for humans to manually search through records and enable technologies like the Internet, GPS, and electronic banking. Databases allow for the functionality of countless services we use daily, from online streaming platforms and cloud storage to social media and financial systems.[1]
From streaming services like Netflix, which rely on databases to track user preferences, to cloud storage, online gaming, social media, and financial institutions, databases are everywhere. They are also essential in industries such as healthcare, government, and weather forecasting, where massive amounts of data are securely stored, analyzed, and retrieved efficiently. Whether it’s powering weather predictions, managing e-commerce transactions, or running social media platforms, databases form the backbone of many key services in our lives.[2]
The European Union’s 1996 Directive on the Protection of Databases (referred to as the “EU Directive” or “Directive”) provides a broad definition of a database, describing it 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.”[3] This wide definition allows for the inclusion of various types of compilations, ranging from publicly available data to personal information and copyrighted works.[4]
The classification of these different kinds of databases raises diverse legal issues and concerns surrounding their protection. For example, database containing personal information of individuals, such as customer data compiled by a service provider, might trigger questions of confidentiality, data protection, and trade secrets. On the other hand, a collection of facts or publicly available data arranged systematically might raise concerns about the extent of protection that can be granted to the creator, and what constitutes infringement of such a database.
For compilations that include already copyrighted works, multiple layers of rights emerge. Not only do the rights of the original authors of both–the underlying work, as well as the creator of the database need protection, but in some jurisdictions, the “maker” of the database, distinct from the creator, itself may also be granted certain rights, leading to a complex web of legal protections that must be reconciled. The Directive ensures that both paper-based and electronic databases are covered under its provisions, providing comprehensive protection in the face of technological advancements.[5]
Copyright law which rewards the “original” work of the author varies from one jurisdiction to another. The basis for protecting such creations is different in common law and civil law countries. The former protect the investment, hard work, and labour of the author while the latter protect the work as an extension of the author’s personality. However, with evolving technologies, as the modes of creating newer works are evolving it is becoming difficult for courts in both these jurisdictions to locate these newer works within the traditional ambit of copyrighted works.
Basis for Copyright Protection
The protection afforded to “original works” under copyright varies across jurisdictions. Broadly, there are two primary policy grounds for protecting an author’s original works. Civil law countries, or droit d’auteur countries like France and Belgium, provide protection based on the concept of author’s rights. The foundation of protection in these jurisdictions lies in the belief that the author, as an individual, possesses certain inherent rights, which should extend to their works. Moral rights form the core of this protection, while the author’s economic rights, though safeguarded, are considered ancillary to their moral rights.[6]
In common law jurisdictions such as the United Kingdom (UK) and the United States (US), copyright protection is based on the investment theory. This approach seeks to safeguard the author’s hard work, labour, and investment. In these jurisdictions, economic rights are the central focus of copyright protection, with the primary aim of preventing competitors from unfairly exploiting the author’s work.[7]
International Developments in Database Protection
Under the Berne Convention for the Protection of Literary and Artistic Works [“Berne Convention”], Article 2 defines “literary and artistic works” broadly to include any intellectual creation expressed in a tangible form. Article 2(5) addresses collections such as encyclopedias and anthologies. It stipulates that collections of works, which demonstrate intellectual creativity in their selection or arrangement, must be protected as individual creations. This protection does not infringe on the copyright of the individual works included within such collections, ensuring that both the compilation and the original works maintain their respective protections.[8]
Similar protection is granted under Article 10 of Trade Related Aspects of Intellectual Property Rights [TRIPS] Agreement, where it is stated that both computer programmes and compilation of data are to be protected under the ambit of “literary work” if they constitute intellectual creations.[9] It also clarifies that the protection under the section extends specifically to the arrangement and not the underlying data. Any existing protection available to the underlying work or data remains unaffected.
Although these Conventions provided for the protection of compilations, collections, etc, the word database was not used expressly in either of them. It was only in 1996 that World Intellectual Property Organization [“WIPO”] brought about the WIPO Copyright Treaty [“W.C.T”] where the term was expressly used and protection was provided.
Article 5 of W.C.T provides protection for compilations of data or databases, regardless of their form, as long as their selection or arrangement reflects intellectual creativity. However, this protection is limited to the structure and organization of the compilation and does not apply to the actual data or material within it. Additionally, any existing copyright in the individual data or material included in the compilation remains unaffected.[10]
In the same year, the European Union introduced the EU Directive, effectively addressing concerns related to databases. The Directive provided two forms of protection: copyright for the author and sui generis protection for the database maker. According to the Directive, a database created by an author that qualifies as an intellectual creation is automatically eligible for copyright protection, without any additional requirements.[11] The author of such a database holds exclusive rights under copyright law, including rights of reproduction, authorization, and publication.[12] Although the Directive does not directly address moral rights, it specifies that any moral rights available under national legislation or the Berne Convention should also apply to database authors.[13]
In addition to copyright protection, the Directive establishes a sui generis right for the maker of a database. The maker is defined as a person who makes a substantial qualitative or quantitative investment in obtaining, verifying, or presenting the contents of the database. This right aims to prevent the extraction or reuse of the whole or a substantial part of the database, assessed both qualitatively and quantitatively.[14] Unlike copyright, sui generis protection does not require the database to meet the standard of intellectual creation,[15] and is granted for a period of fifteen years.[16] Lawful users of the database are obligated not to exploit it in a way that harms the interests of both the author and the maker.[17]
Copyright Protection Framework in India
The Indian Copyright Act of 1957 closely aligns its terminology with that of the Berne Convention and the TRIPS Agreement. Following the 1994 amendment, Section 2(o) expanded the definition of literary works to include “computer programmes, tables, and compilations, including computer databases.”[18]
In India, copyright protection is determined by an originality test, and there is no sui generis protection available specifically for databases. Consequently, the level of protection afforded to a database depends on the courts’ assessment of its originality. If a database fails to meet the necessary threshold of originality, any economic investment made in it does not grant copyright rights.
The Indian courts have in several cases, dealt with the rights and protection of different types of databases explained above. For instance, in 1995, the Delhi Court was faced with a case where the plaintiff, a mail order service company, kept a compilation of the data of their customers stored in their computer. It was claimed that this data was unlawfully stolen by the defendants, who earlier worked with the plaintiff, but then after quitting the employment, they started a rival business and used the information stored by the plaintiff. Questions were raised regarding the copyright of the plaintiff in the compilation.[19]
The court was of the opinion that “compilation of addresses developed by any one by devoting time, money labour and skill” were eligible for protection as “literary work”. The defendants had slavishly copied the creation, without applying enough skill of their work to distinguish their work from the plaintiff’s and hence were liable.[20]
The court again gave a similar ruling in the 2005 case of Himalaya Drug Company v. Sumit, where the database created by the Himalayan Drug Company on its website had been blatantly copied by the defendant. The courts while according protection to the plaintiff company observed that, “the most important feature of the website is the section tited-”HIMALAYAS HERBS” which essentially consists of a data base of a wide variety of medicinal herbs, arranged in alphabetical order. Under the head of each herb there is presented information relating thereto. Such information is not only comprehensive but is also arranged in a manner that is visually appealing and easy to grasp.”[21]
In the 2007 case of Eastern Book Company (EBC) & Others v. D B Modak & Anr, the Supreme Court was faced with the question that whether EBC, a platform which performs the tedious task of compiling and editing Supreme Court judgements, making amendments to the judgement to make the navigation easier is eligible to get a copyright protection for the same.[22]
The court discussed in detail the applicable tests to determine the originality of the work. The “sweat of the brow” approach adopted by the English Courts which merely considers the labour of the author to determine the originality was not found to be sufficient by the court. On the other hand the standard of “creativity” upheld by the Courts in the United States was found to be too high of a threshold. The test applied here was that of “exercise of skill and judgement” which was adopted in the CCH Canadian Ltd. v. Law Society of Upper Canada, case, and was a middle path between the two extremes.[23] Applying this test, the court held that mere copy-editing, and clerical corrections did not meet the standard of originality, however the skill and judgement applied to write headnotes, footnotes, etc., was seen eligible to be protected.[24]
Thus the Indian courts while determining the copyright in databases rely on facts of the case. Where the facts satisfy the test of skill and judgement, protection is accorded.
Comparative Analysis: Global Perspectives on Database Rights
While determining the protection in football fixtures, the English Court in the case of Football Dataco Ltd v. Brittens Pools Ltd, held that while it is the ultimate arrangement of data, facts, works which is protected, the compilation is not merely the arrangement but it begins way before that with the creation of data, for which there is an application and skill and judgement.[25]
The courts distinguished arrangement in fixtures for telephone directories. The landmark US case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc. which led down the creativity test, clearly held that the telephone directories, containing merely names and phone numbers of persons, did not meet the modicum of creativity.[26]
In Australia, in the Telstra Corporation Ltd v. Phone Directories Co Pty Ltd case, [hereinafter “Telstra Corporation”] the Full Federal Court had to determine whether copyright could subsist in Telstra’s White and Yellow Pages directories. It unanimously rejected Telstra’s argument that “industrious collection” or labour alone was sufficient for copyright protection. Instead, the Court emphasized that originality required independent intellectual effort or sufficient effort of a literary nature directed at the creation of the material form of the work, not just the collection of data.[27]
In this case, in creating the directories human involvement was limited to overseeing automated processes, not the actual creation of the material form. As a result, the Court found that copyright did not subsist in the directories, as they were not the product of human authorship.[28]
Problems arising with technological advancements
The standards for copyright protection of databases in India and other countries generally require a certain level of originality, skill, and judgment. However, the Australian case of Telstra Corporation case raises a critical concern. Traditionally, databases were protected based on the human skill, labour, and time involved in their creation. But as technology advances, much of the work in creating, organizing, and managing data has been digitized and automated. In the Telstra Corporation case, the Australian court denied copyright protection to a database because the human input was deemed insufficient.[29]
With the rise of Artificial Intelligence and machine learning, human intervention in tasks like data organization and judgment is continually diminishing. This raises questions about the existing standard of originality for copyright protection of databases. While databases play an essential role in daily life, lowering the originality threshold could lead to new challenges. Currently, copyright protects the arrangement and structure of databases, not the data itself. However, with technological advances, it has become easier to rearrange data and claim copyright on a modified structure. A lower threshold for protection could create a loophole, enabling the misuse of copyright laws for data appropriation.[30]
Given the crucial role databases play in various aspects of modern life, lowering the threshold for creativity in copyright protection could lead to significant challenges. Currently, copyright law protects the arrangement, structure, or layout of a database, but not the underlying data itself. However, with technological advancements, handling and organizing data has become so simple that individuals could easily modify the arrangement of data and claim copyright over the new structure. This creates a potential loophole where a lowered standard for originality might be exploited, allowing individuals to appropriate data by making minimal changes to its format and securing copyright protection for it. This would undermine the balance intended by copyright law, leading to misuse and stifling fair access to information. Thus, the solution to the problem cannot solely be located in the Copyright Law.
Conclusion
Databases are integral to our modern lives, enabling various technologies and services that streamline data management across multiple sectors. With the increasing reliance on databases—from healthcare and finance to entertainment and social media—the need for robust legal protections becomes even more pressing. However, as highlighted by the Australian case of Telstra Corporation, the rapid advancement of technology challenges existing copyright standards. The traditional requirement of originality based on human skill and effort is becoming less relevant in an era where automation and artificial intelligence can perform similar tasks with minimal human intervention.
As we consider the implications of these changes, it is crucial to recognize that merely lowering the threshold for copyright protection is not a viable solution. Such a move could create significant loopholes, allowing for the appropriation of data through minor modifications, thereby undermining the protections intended by copyright law.
In such a scenario, to honour the significant economic and other contributions made by the “makers” of the database, the way ahead would be for more countries to recognise and adopt sui generis protection available under the EU Directive. It creates a perfect balance between exclusivity and access. The protection afforded to a maker is for a much shorter duration of fifteen years compared to that of the author. Further, since, the right of the maker is solely rooted in economic contribution for the creation of the database, the rights vested in the maker are also limited and do not extend to moral rights. Such a balanced approach when adopted under the Indian law can help achieve better protection for database creators and will act as an incentive for more people to invest in databases.
Under the Indian law, punishment is prescribed under the Information Technology Act for any person who copies, downloads or extracts data, computer database or the computer network and the word database in the Act refers to representation of any knowledge, information, fact, instruction, or concept in a formal way.[31] The damage payable by such person is up to rupees 1 crore. Stringent application of the law in case of violation can also work as a deterrent against violation of database rights.[32]
[1] Eshaan Pandey, “The Role of Database Applications in Modern Business Environments” KNOWLEDGEHUT (September 5, 2023). https://www.knowledgehut.com/blog/database/database-applications
[2] Id.
[3] Directive 96/9/EC of the European Parliament and of the Council (March 11, 1996) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009 [hereinafter “EU Directive”], Art. 3,
[4] Mridushi Swarup, “Protection of Databases: An Analysis of the International Scenario and the Indian Position—Road Ahead” https://www.manupatra.com/roundup/342/Articles/Protection%20of%20Databases.pdf.
[5] EU Directive, Art. 3.
[6] Jane C. Ginsburg, “The Concept of Authorship in Comparative Copyright Law”, 52 DEPAUL L. REV. 1063 (2003)
[7] Id.
[8] World Intellectual Property Organization, Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979) TRT/BERNE/001 https://www.wipo.int/wipolex/en/text/283698 [hereinafter “Berne convention”], Art. 2(5).
[9] Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter “TRIPS Agreement”], Art. 10.
[10] World Intellectual Property Organization, WIPO Copyright Treaty (December 20, 1996) TRT/WCT/001 [hereinafter “W.C.T”], Art. 5.
[11] EU Directive, Art. 3.
[12] EU Directive, Art. 5.
[13] EU Directive, Preamble.
[14] EU Directive, Art. 7.
[15] EU Directive, Art. 7(4).
[16] EU Directive, Art. 10.
[17] EU Directive, Art. 8.
[18] Indian Copyright Act of 1957, § 2(o).
[19] Burlington Home Shopping Pvt Ltd. v. Rajnish Chibber & Anr. 1995 SCC ONLINE DEL 746.
[20] Id.
[21] Himalaya Drug Company v. Sumit 2005 SCC ONLINE DEL 1443.
[22] Eastern Book Company (EBC) & Others v. D B Modak & Anr, 2008 SCC 11.
[23] CCH Canadian Ltd. v. Law Society of Upper Canada 2004 SCC 13.
[24] Eastern Book Company (EBC) & Others v. D B Modak & Anr, 2008 SCC 11.
[25] Football Dataco Ltd v. Brittens Pools Ltd [2010] EWHC 841 (Ch).
[26] Feist Publications, Inc. v. Rural Telephone Service Company, Inc. 499 U.S. 340.
[27] Telstra Corporation Ltd v. Phone Directories Co Pty Ltd [2010] FCAFC 149.
[28] Tabrez Ahmad & Sourav Dan, “Comparative Analysis of Copyright Protection of Databases: The Path to Follow” Journal of Intellectual Property Rights vol. 17, 111 (2011).
[29] Id.
[30] N. S. Sreenivasulu, “Law relating to Intellectual property.” (Partridge Publishing, 3rd Ed. 2013).
[31] Information Technology Act, 2000, § 43.
[32] Id.
Author: Anandita Srivastava and Anandita Anand, students at National Law University Jodhpur.
