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Change in law strengthens database protection [1998] PLBIRp 11; (1998) 44 Privacy Laws and Business International Report 17

Change in law strengthens database protection

A report by Simon Chalton

DATA PROTECTION OFFICERS are concerned primarily with data protection compliance, but they should also be aware of their companies’ intellectual property rights and responsibilities in relation to the databases they create and use.

Data protection is aimed at protecting the informational privacy of individ- uals: database protection has an entirely different function, namely the protection of the creativity and investment put into the compiling, verification and presentation of data- bases, whether of personal data or

made after that date, the old rules have been changed, but there is still the possibility of copyright protec- tion being available for 70 years for collections which fall within the newly-defined concept of a “data- base,” provided that the database is its author’s own intellectual creation.

a real risk that copyright protection will not be available. This is because such lists are often not their authors’ own intellectual creations, and their lack of human creativity disqualifies such collections from copyright. Here the new database right, available since

1st January 1998, steps in to provide

otherwise. Companies which spend heavily on the creation and maintan alternative or additional protection for the investment made in compiling

nance of their databases do not want to see their investments dissipated or abused by others.

A recent change in the UK law (The Copyright and Rights in Databases Regulation 1997) which became effective on 1st January 1998 now provides significantly stronger intellectual property protection for databases. It also enables broadly harmonised protection to be available throughout the European Economic Area as other countries will also implement the EU Database Directive.

CHANGE IN COPYRIGHT RULES UK copyright law has for many years protected tables and compilations of materials as literary works. What was protected was the skill and labour applied in selecting and arranging the contents of such collections, and any reproduction of the collection or a substantial part of it was, and is, an infringement of copyright.

For collections which existed at

26th March 1996 that protection can continue in its old form for the full 70 year copyright term. For collections The distinction between a table or compilation, protected under the old rules, and a database, protected under the new rules, is not always easy to apply. Most databases are compila- tions, but not all compilations are databases: in a nutshell, collections of materials which are not mutually independent may qualify as compila- tions but not as databases.

INDEFINITE PROTECTION FOR DATABASES

For new collections which qualify as databases, for example, lists of cus- tomers or other data subjects, there is

the database. Creativity is not neces- sary for a database right: it is sufficient that there has been a substantial investment, including any investment whether of financial, human or tech- nical resources, in obtaining, verifying or presenting the database contents. Database right has a term of only

15 years protection, which is short by comparison with the 70 year term available for copyright. However, a new 15 year term can be gained for a database by making further sub- stantial investment in updating, representing or verifying its contents. In that way, protection by database right can be extended indefinitely.

Where copyright protects primari- ly against copying or reproduction, including copying in electronic form, database right protects against extrac- tion and re-utilization. “Extraction” means the permanent or temporary transfer of the contents of a database to another medium by any means or in any form, and “re-utilization” means making the contents of a data- base available to the public by any means. In practice, any unauthorised use of a protected electronic database is likely to infringe either copyright or database right, or both. Even though use may be limited to searching for a single item of information, or to dis- covering that a single item is not present in the database, temporary reproduction of the database contents in machine memory in the course of making the search can infringe both copyright and database rights.

RIGHTS BELONG TO COMPILER Managers responsible for the compil- ing and use of databases need to be aware of two main problems:

• They may compromise the copy- right or database right their companies might otherwise have had over the databases they create; and

• They infringe the copyright or data- base right of other companies in databases which they consult or in materials which they add to their own databases.

Failure to secure and protect copyright and database rights can result from inadequate contractual procedures. Arrangements with outside data providers should enable the database compiler to take owner- ship of copyright and database right in the resulting work. If appropriate steps are not taken, copyright and database rights in the same database may belong to different owners with conflicting interests, so that neither can effectively use the database without the consent of the other. Database right is a new concept which differs significantly from copy-

right, but can co-exist with it. Data protection managers who are con- cerned about intellectual property rights in their databases should have at least a basic understanding of the new rules.

Copyright Simon Chalton 1998. All rights reserved.

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Simon Chalton is a consultant with: Bird & Bird, 90 Fetter Lane, London EC4A 1JP,

Tel: +44 (0)171 415 6000, Fax: +44 (0)171 415 6111.

Direct Tel: +44 (0)1347 868641

Direct Fax: +44 (0)1347 868689

e-mail: simon_chalton@link.org