Scintilla – a flash, a spark, an iota. Shorthand for creativity and an indicator of inventiveness under Australian law.

Wednesday, December 9, 2015

Databases are protected by copyright, right?

by Scott Joblin

These days, businesses are built on the back of the databases they've compiled, and fortunes are made and lost on making sure those databases are safe, secure and proprietary.

Obviously, the easiest way to keep your database secure is to never reveal it to the public. However, what happens if the content of your database must be public or your revenue model relies on revealing or publicising your data (e.g. publicly searchable indices or television programming schedules)?

If your content is out there in the wild, can you rely on copyright to stop people from copying your content and profiting from your hard work? 

The short answer is: probably not. The slightly longer answer is: it depends on what you want to protect.

A shift in focus – the impact of IceTV
We know that anyone who claims copyright infringement needs to demonstrate, first, that copyright subsists in a work and, second, that a substantial part of the work has been copied. The same principles apply to databases. 

However, in 2009, the High Court's judgment in IceTV v Nine Network Australia Pty Ltd* really impacted the way we now think about copyright infringement and databases. 

Prior to IceTV, the focus in this area was primarily on whether a database qualifies for copyright protection at all – that is, cases tended to focus on the first question.

Following IceTV, we think that question is almost redundant because, even if copyright subsists, the scope of protection offered by copyright is so limited that few databases will actually be effectively protected.

What sort of database will be protected?
The answer is best encapsulated in the oft-cited phrase 'independent intellectual effort directed towards expression'. Basically, this means that copyright law will only protect a database if someone copies the presentation of the information, but not if they copy the content. 

Maybe the Hawthorn AFL selectors spent many agonising hours selecting the team that ultimately won them the 2015 premiership, however once they agreed, it was a very simple task to write the names down. The effort that went into essentially creating the facts is not protectable as copyright. So once they released the names – even in their nominated positions – anyone could copy them. That seems fair, but what if the database is far more detailed? The legal outcome would be the same.

What are the practical implications for those who have databases?
Unfortunately this is largely bad news for database owners because it restricts the protection that copyright will offer. Basically, where the layout of information in a database is a key aspect of that database, copyright will probably be very helpful. The flip side is that databases which are valuable because of their content receive much less protection under Australian copyright law. 

Should we be looking at any solutions to this issue?
The EU is way ahead on this – they adopted Directive 96/9/EC in March 1996 which created a specific database right distinct from copyright protection. This right protects owners against third parties extracting or using facts in a database without permission. The point is to recognise the investment that has gone into compiling the information in the database – even where the database lacks sufficient creative expression for copyright protection. Copyright operates alongside this special database right and can still step in to prevent copying of the presentation of information in a database.

In the wake of IceTV, it might be time for Australia to follow suit and introduce measures recognising the significant investment of time and money that often goes into creating and maintaining databases.

*(2009) 239 CLR 458 (IceTV).

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