UK Database Law

UK Database Law COPYRIGHT

Copyright in England and Wales is governed by the Copyright, Designs and Patents Act 1988. For the purposes of this wikibook this will be referred to as the 1988 Act. Under s.1(1)(a) of the 1988 Act, copyright is stated to "subsist", i.e. exist, in "original literary works". "Literary works" are defined in s.3(1) of the 1988 Act as being "any work, other than a dramatic or musical work, which is written, spoken or sung". Copyright will exist in database if it is sufficiently original; in order to be a literary work, “the selection or arrangement of the contents of the database” must constitute the author's own intellectual creation s.3A of the 1988 Act.

Existence Copyright arises automatically in a work that meets the criteria outlined below. There is no need to register copyright in a database with a central organisation. Originality s.1(1)(a) requires the database to be original. "Original" for the purposes of copyright means that the database is the author's own work, i.e. not copied from the work of another party. A common misconception is that an idea can be protected by copyright. This is not correct. Copyright protects that expression and form of an idea, not the idea itself. It is equally the originality of the expression and form that matters, not the idea. Minimum effort A literary work does not require significant effort in order to obtain copyright protection. Any writing will attract copyright, provided it is substantial enough to constitute a work. Recorded In order to obtain copyright, data must be recorded. The nature of databases is such that this requirement will always be satisfied.

Ownership Under s.11(1) of the 1988 Act, initial ownership is owned by the author or co-authors of a database. Under s.11(2) of the 1988 Act, if the author of the database is an employee, copyright in the database is owned by his employer. This is subject to the following provisions: the database must have been created in the course of the employee's employment there must be no agreement to the contrary between the employer and employee, e.g. an agreement granting the employee copyright in the database If a database is commissioned, copyright rests with the author, not the person, company or organisation whom commissioned the database. An agreement whereby a third-party is commissioned to create a database should contain a clause providing for assignment or licence of copyright work. In the case of Blair v Alan S Tomkins & Anor (1971) 21 QB 78 it was held that in the absence of licence, one will usually be implied. Note, in Griggs Group Ltd v Evans (2003) EWHC 2914. it was held that the party who commissioned a database may be entitled in equity to beneficial title in the database if a mere licence may not give them enough rights to stop the work being used by a rival.

Duration Under s.12 of the 1988 Act, copyright will protect a database for the life of the author (or employee) plus 70 years.

Rights Under s.16 of the 1988 Act, copyright provides the owner of a database with the right to prevent another party copying the database. s.16 equally provides the owner of a copyright with exclusive rights to: copy the work (see s.17) issue copies of the work to the public (see s.18) rent or lend the work to the public (see s.18A) perform, show or play the work in public (see s.19) to communicate the work to the public (see s.20)

Infringement Copyright in a database is infringed if a “substantial part” of the database is copied by another unauthorised party. The question of what is a substantial part is qualitative. Primary infringement A party who commits a primary infringement of copyright in a database is liable regardless of state of mind. Copying can be indirect – i.e. a result of seeing a copy of the original work – s.16(3). Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright – s.16(2) There is a rebuttable presumption of copying if the defendant's work is similar to that of the claimant and the defendant has access to the claimant's work. Secondary infringement Requires knowledge, or reason to believe, that one is dealing with an infringing copy. Copies are made without the copyright owner's permission. Includes: people who import infringing goods – s.22 people who sell infringing goods – s.23

Defences Fair dealing: for purposes of research or private study – s.29 for purpose of criticism or review – s.30(1) for the purpose of reporting current events – s.30(2)

Remedies Damages for primary infringement – s.97 Note, this remedy is not available if a defendant did not know and had no reason to believe that the database was copyright Delivery up for primary infringement – s.99 The database owner may seize offending copies of the database – s.100. Normally this remedy is only used against street traders as the right excludes business premises. An infringing party may face criminal liability for making or dealing with infringing articles – s.107 Delivery up of infringing copies – s.108 Destruction of offending copies – s.114 Order preventing importation of infringing copies – s.111