Definition

Databases are defined as a collection of independent works, data or other materials that are arranged in a systematic or methodical way and can be accessed by electronic or other means.

A database, that is a collection of data or other material that is arranged in such a way so that the items are individually accessible, may be protected by copyright and/or database right. For copyright protection to apply, the database must have originality in the selection or arrangement of the contents and for database right to apply, the database must be the result of substantial investment. It is, of course, entirely possible that a database will satisfy both these requirements so that both copyright and database right apply.

The wording means that analogue as well as digital works are covered. Recordings, audiovisual, cinematographic, literary or musical works as such are not included although multi media works are probably covered. The definition is wide enough to capture a very wide range of digital and hard copy products.

Protection

The protection is available as a right for the maker of a database that shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents. In the UK a database made by an employee in the course of his employment will, in the absence of contrary agreement, be regarded as having been made by the employer.

As with copyright there is no requirement of registration. The Directive does not provide any guidance on what constitutes substantial investment. The evidence of most of the decided European cases so far is that the requirement for “substantial investment” will not be difficult to meet.

Database right is in many ways very similar to copyright so that, for example, there is no registration for database right - it is an automatic right like copyright and commences as soon as the material that can be protected exists in a recorded form. Database right can apply to both paper and electronic databases. However, there are three main differences between database right and copyright:

The term of protection for database right is much shorter. Database right lasts for 15 years from making but, if published during this time, then the term is 15 years from publication.

The activities that a right holder can control, and which are, therefore, infringed if undertaken without the right holder's permission, are a bit different. Database right concerns control over the extraction and re-utilisation of the contents of the database.
The exceptions to the right, that is activities that a user can undertake without the permission of the right holder that do not infringe the right are not quite the same. In particular, fair dealing for the purposes of research or private study does not extend to research for a commercial purpose.

Databases - the 'restricted acts'

The temporary or permanent reproduction by any means and in any form in whole or in part of the database
The translation, adaptation, arrangement or any other alteration of the database
Any form of distribution to the public of the database or copies of the database
Any communication, display or performance to the public of the database
Any reproduction distribution, communication, display or performance to the public of the results of any translation adaptation arrangement or any other alteration of the database

This is a very wide protection - for example simply searching a database electronically may involve the temporary copying of the database to another medium and thus may constitute a restricted act.

Restricted acts are allowed where -
The user has been licensed to use the database or is otherwise a lawful user
It is for teaching or scientific research but not commercial research
It is for public security, administrative or judicial purposes

Copyright

It is important to remember, that many databases are a collection of copyright works, such as an on-line database of poetry from the last fifty years where each poem will be protected by copyright.

So people compiling databases need to make sure that they have permission from the copyright owners for use of their material and people using databases need to be aware of the rights of copyright owners as well as database right owners. Where a database has been delivered on-line, though, there will often be a contractual agreement between the database owner and the user setting out what use is permitted, and this will generally take precedence over any exceptions in the law.

Protection equivalent to database right should exist in other countries in the European Economic Area but not necessarily in the rest of the world, although all members of the World Trade Organisation (WTO) do have an obligation to provide copyright protection for some databases

Legal Remedies

If the database right is infringed by the commission of a restricted act then owner of the right may claim relief by damages, and/or an injunction preventing further restricted acts. Database rights can only be enforced through civil courts.
This contrasts with copyright which can be enforced through criminal and civil sanctions.

The two rights (copyright and database right) protect different or potentially different people - the 'maker' of the database can claim the protection of the database right whereas the 'author' (a term which acknowledges creativity) may be able to claim the protection of copyright. The two rights also run for different periods of time. Copyright runs for 70 years from the end of the year of the author's death whereas the database right runs for 15 years from the end of the year of completion of the database.

However a substantial updating or verification of the database may start an entirely new 15 year period running.

In the first UK case concerning database right (BHB-v-William Hill Organisation Limited), the judge held that William Hill had infringed the BHB's database right.
This was on the basis that they had "extracted" information relating to horse races (times, runners and riders) from the BHB database and "re-utilised" it by making this information publicly available on its betting web site without the BHB's permission.

Database right can be infringed by copying the contents of a database and rearranging them.

The important points to note are:

1) Does your business use information/data (such as statistics relating to sport and sporting events) that might be extracts from another party's database? Have you got permission to use those extracts?

2) Does your business have a database that has been built up through an investment of time and money? For example the British Horseracing Board ("BHB") has and maintains a database comprised of information relating to racehorses, jockeys and details of horse races.

If so, database right might subsist in your database and you might be able to commercially exploit your database and/or stop third parties exploiting your database without your permission.

Jurisdiction

The database right is very much ‘Made in Europe’ and only exists in a database made by:
(1) an EEA national or resident,
(2) an EEA company with either its central office or main place of business in the EEA or registered in the EEA with operations linked to an EEA economy
(3) an EEA unincorporated body with its central office or main place of business in the EEA.

Existing US databases do not qualify. However, future US databases can enjoy protection if made in collaboration with an EEA body. Any collaboration must be genuine and the EEA party cannot be just a subcontractor – it has to take some development risk. Once the database right exists it can be assigned (in writing) to a non-qualifying person. Ironically, a US company can buy database rights in an EEA database but an EEA company cannot acquire similar rights in a US database.

Licensing

The database right can be transferred assigned or licensed. The fact that an individual database may attract either, neither or both copyright and database right means that licensing agreements will have to be carefully considered and drafted so that both relevant rights are assigned where appropriate. Licensing can be in the form of
shrink-wrapped End User Licence Agreements (EULA's) or to intermediate licensees who then sub-license.

The law does however prevent the new database right from being used in any way that allows an abuse of a dominant position. This is effectively a confirmation of EC law on such a situation - one of the best examples being the overthrow of the monopoly on TV listings (arguably a form of database) which used to exist.