25% developed

UK Database Law

From Wikibooks, open books for an open world
Jump to navigation Jump to search

Statutes of England Great Library Toronto.jpg

UK Database Law
DATABASE RIGHT

Scale of justice 2.svg

Database right is a sui generis right that has provided protection for databases in England and Wales since 1997.

Prior to 1997 the view in England and Wales was that databases were adequately protected by copyright (see previous). This conflicted with the wider view in continental Europe that databases were functional documents, not literary works, and as such could not be protected by copyright.

The European Union passed Council Directive 96/9/EC on the Legal Protection of Databases ('the Database Directive') in order to standardise the legal protection provided to databases across the EU.

In England and Wales, the Database Directive was implemented by the Copyright and Rights in Databases Regulations 1997 SI 1997/3032 ('the 1997 Regulations'). The 1997 Regulations amended the 1988 Act to limit the extent to which copyright applies to databases (s.3A).

Existence

Under Reg.13 of the 1997 Regulations, database right subsists in a database if "there has been a substantial investment in obtaining, verifying or presenting the contents of the database".

In order to qualify for database right in English law, one or more of the creators of the database must reside in the European Economic Area, see Reg.18.

Like copyright, database right will arise automatically in databases that meet the criteria provided Regs.13 and 18. The creator of a database right does not need to register the right with a central body.

Ownership

Under Reg.15 of the 1997 Regulations, the maker of the database is the first owner of it.

The maker is defined in Reg.14(1) of the 1997 Regulations as "the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining, verification or presentation shall be regarded as the maker of, and as having made, the database".

Regulation 14(2) provides a caveat that "where a database is made by an employee in the course of his employment, his employer shall be regarded as the maker of the database, subject to any agreement to the contrary". This is similar to the position with copyright.

Duration

Regulation 17(1) of the 1997 Regulations provides that "database right in a database expires at the end of the period of fifteen years from the end of the calendar year in which the making of the database was completed".

Regulation 17(3) provides further that "any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment shall qualify the database resulting from that investment for its own term of protection".

In effect, it is possible for databases that are updated regularly to obtain indefinite rolling protection from database right, i.e. every updated version of the database obtains 15 years protection.

Rights

Database right gives the owner the right to prevent copying and unauthorised use of the database.

Infringement

Under Reg.16(1) of the 1997 Regulations, "a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database".

Extraction, re-utilisation and substantial are defined in Reg.12.

Extraction is defined as "the permanent or temporary transfer of [the] contents [of the database] to another medium by any means or in any form".

Re-utilisation is defined as "making [the] contents [of the database] available to the public by any means".

Substantial is defined "in terms of quantity or quality or a combination of both".

Regulation 16(2) further provides that "the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents".

Defences

Fair dealing - Reg.20 of the 1997 Regulations:

  • extraction by a lawful user - Reg.20(1)(a)
  • extraction for purpose of illustration or teaching or for a non-commercial purpose - Reg.20(1)(b)
  • the source is indicated - Reg.20(1)(c)

Regulation 20(2) provides further exceptions to database right for public administration. These are detailed in Schedule 1 of the 1997 Regulations.