Database right - overviewCreation of database right

Until the late 1990s intellectual property rights in databases lay only in copyright, which included tables and compilations in the category of original literary works.

The EC Council Directive 96/9 on the legal protection of databases was implemented in the UK by the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) ('the Regulations'). The Regulations amended the Copyright Designs and Patents Act 1988 (CDPA 1988) to create a new database right. As with copyright in the UK, there is no need to register or take other formal steps for the right to be acquired as it will apply automatically whenever the qualifications for the right are fulfilled.

Definition of database right

In CDPA 1988 a database is defined as a collection of independent works, data or other materials that is:

The right will only arise in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. A restrictive interpretation of this provision by the European Court of Justice required the database owner to show a substantial investment in the creation of the database as a database rather than in the creation of the database content itself. This interpretation has limited the scope of the new right although subsequent cases have shown that database right can be relevant in the protection of compilations of data, particularly where departing employees are involved.

Duration of right

Database right lasts for a term of 15 years from the end of the calendar year in which the database is completed. If the database only comes into the public domain after completion but before expiry of the 15 year period, it will be protected for 15 years from that first publication.

However, protection of the database can actually last for a much longer period than 15 years. This is because the term restarts each time a new investment is made to change the contents of the database. This change need not be a single major change, but can be cumulative after many small amendments. Thus a database which is regularly updated may have a perpetual term of protection under database right.

Makers and owners

Database right arises for the benefit of the 'maker' of the database rather than the 'author' as in a copyright work. The maker must take the initiative, and assume the risk, in making substantial investment in:

the contents of the database.

In the case of an employee, it is his or her employer who will be deemed the maker, although the parties can agree to the contrary. The maker of a database will be the first owner. If more than one individual is involved in the initiation and investment in the database the database will be made jointly.

Qualification for protection

UK database right is applicable if during the making of the database the maker is within one of the geographically qualifying classes, including eg:

Exploitation of database right

Once a database has been made available to the public extracting or re-utilising insubstantial parts of its content is not an infringement. The concept of 'fair dealing', contained in the CDPA 1988, is also permitted as are other specified exceptions to database right. A database right can be licensed and sold as with other intellectual property rights.

Infringement of database right

Under Part III of the Regulations, the extraction or re-utilisation of all or a substantial part of the contents of a database will infringe a database right. The infringement need not be a single act. Repeated and systematic extraction or re-utilisation of insubstantial parts can accumulate to amount to a substantial part. Some provisions of the CDPA 1988 are also applicable to dealing with databases and the rights and remedies of holders of database rights.

Copyright in databases

The Regulations also changed the scope of copyright in databases.

The inclusion of tables or compilations in the definition of 'literary work' now applies to those 'other than a database' (CDPA 1988)

There is now an express requirement for an element of creativity in a database to qualify for copyright protection under the CDPA 1988. The requirement of originality will only be satisfied 'if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author's own intellectual creation'. (CDPA 1988)

In addition, however, it remains the case that individual items comprising a database may in themselves attract copyright protection, eg a database of works of poetry.

To the extent that the database or its contents may qualify for copyright protection, they benefit from the full term of copyright protection.