Do you recognise specific intellectual property rights in respect of data/databases?
Technology (3rd edition)
Under the Law of Armenia on copyright and related rights a database stands for a collection of works, data or other independent materials arranged in a systematic or methodical way the individual elements of which shall be separately accessible by electronic or other means and the acquisition, verification or presentation thereof shall require substantial qualitative and (or) quantitative contribution.
The same Law defines the maker of a database as a person by whose initiative and on whose own responsibility substantial qualitative and (or) quantitative contribution is made for the acquisition, verification or presentation of the content of the database.
Any substantial change, evaluated qualitatively or quantitatively, to the content of the database, including any substantial change resulting from the accumulation of successive editions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify a new database resulting from that investment.
The maker of a database shall have the right to prohibit
- the extraction (the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form) and/or
- the re-utilization (any form of making available to the public all or substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission)
of the whole contents or a substantial qualitative and/or quantitative part of the database.
Lending of the original or copies of a database through establishments, which are accessible to the public, is not an act of extraction or re-utilization.
The aforementioned right of maker of database may be applied irrespective of the eligibility of the contents of that database for protection by copyright or by related rights and shall be without prejudice to the rights of the authors or holders of related rights in respect of the works contained in the database.
The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.
The maker of database may transfer his economic rights to a third person wholly or in part by a contract; the rights may be inherently transferred to another person by the order of comprehensive succession or as a result of reorganization of a legal entity, which is the right holder.
The maker of database may also provide, by contract, third persons with the right to use the database. The contract shall include the form and term of use of the database, the amount of remuneration and the payment order, the area, etc.
The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and (or) re-utilizing insubstantial parts of its contents, evaluated qualitatively and (or) quantitatively, for any purposes, whatsoever. Where a lawful user is authorized to extract and (or) reutilize only a part of the database, this provision shall apply only to that part.
A lawful user of a database, which is made available to the public in whatever manner, may not perform acts, which may conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database.
A lawful user of a database which is made available to the public in whatever manner may not cause prejudice to the holder of a copyright or related rights in respect of the works or subject matters contained in the database.
A lawful user of a database which is made available to the public in whatever manner may, without the authorization of the maker of the database, extract or re-utilize a substantial part of its contents:
- in the case of extraction for private purposes of the contents of a non-electronic database;
- in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to extent justified by the non-commercial purpose to be achieved;
- in the case of extraction and (or) re-utilization for the purposes of public security or an administrative or judicial procedure.
No, our current legislation does not contemplate specific intellectual property rights for databases.
Data/databases are considered as rights affiliated to copyrights; and accordingly, are protected under the IP Law.
Accordingly, the protections and rights mentioned under our answer to question no. 6 are applicable to the data/databases.
Further, databases are also protected by the Cyber Crimes Law providing that any service provider shall keep all information provided by the consumer in strict confidence, and this includes the data and databases related to any users.
Further, all provisions related to the data protection of personal data shall also be applicable to the data/databases (which is mentioned in details in our answer to question no. (8) below).
The Estonian copyright act regulates the rights of the makers of databases. The provisions include specific rights of the makers, rights and obligations of the lawful users and limitations of the rights of makers of the database. The maker of a database has the exclusive right to authorise or prohibit the use of the database in the manner prescribed in the copyright act and to obtain remuneration agreed between the parties for such use, except in the cases prescribed law or by agreement of the parties. The first sale of a copy of a database by the maker of the database or with the latter’s authorisation shall exhaust the right of the maker of the database to control the resale of the database or the copy.
Pursuant to EU directive 96/9/EC of 11 March 1996, a database may be subject to both copyright, which may benefit its author in respect of his original selection or arrangement of the contents of the database, and to a specific, sui generis right that will inure to its ‘producer’ for a period of 15 years, irrespective of the originality of the database.
Under the CPI, the ‘producer’ of a database is defined as the person who initiated the investments in the database and assumed the associated risks, when the investment in the obtaining, verification or presentation of the contents is substantial from a financial, material or human standpoint. Due to this sui generis database right, the effort made in developing a database that is a compilation of information or commonplace data, such as a telephone directory or football match listing, may still be protected despite its lack of originality. This protection enables the producer to prohibit extraction or re-utilization of the whole contents or of a substantial part thereof.
Nevertheless, under the above rules, only the database is protected, not data per se: data is indeed considered as information. In principle, information should circulate freely. Legally speaking, exceptions occur where data has been made confidential or is secret or where it is regulated as personal data.
No. However, the PRC Copyright Law may provide the same rights as referred to above (Question 13) to selective collections of data (or datasets) and database software. Moreover, databases and relevant data therein may be deemed trade secrets and protected under the PRC Anti-Unfair Competition Law (see Question 13 above).
Data per se is not afforded intellectual property protection under Israeli law (although data that constitutes a trade secret will be subject to trade secret protection, as detailed in Section 7 above), nor is there a sui generis database right.
There is, however, copyright protection for the manner of expression of data (e.g. facts and figures), such that the creator of an original database has copyright in the selection and arrangement of the data, though not in the data itself. The Copyright Act, 2007 protects original compilations, where the definition of “compilation” includes “a compilation of data, including databases”; Section 4(b) of the Copyright Act states that originality in the context of a compilation is the originality of selection and arrangement of the works or data contained therein.
As noted above with regard to software, in appropriate circumstances rights in data and databases may also be protected by claims for unjust enrichment.
Italian Legislative Decree no. 169/1999 added, among the works benefiting of copyright protection, “databases which, by the choice or arrangement of the material, constitute a creation of the author's own creativity”.
Italian legislation provides for a two tier copyright protection.
The first type of protection is part of the traditional discipline of copyright and has as its objective the protection of (electronic and printed) archives understood as a set of data, works or other that, for the particular type of assembly chosen, are characterized as an intellectual creation.
The second type of protection aims at safeguarding the patrimonial value of the investment made by the creator of the database, in such a way as to discourage any possible counterfeiting of the archive carried out through the extraction and reuse of the contents of the database. Said atypical nature can also be found in the duration of such protection. This protection is set at 15 years (from 1 January of the year following the completion of the archive) and is renewable in case of new and significant investments.
In Japan, there are no unique intellectual property rights that protect data itself; but certain kinds of data may be protected under patents, copyrights, or trade secrets under limited circumstances. For instance, data may be protected by patents when data exist as a form of a computer program (see question 6) or by copyrights when copyrightable works are expressed in a data format. Also, data may be protected as “trade secrets” under the Unfair Competition Prevention Act or by tort claim under the Civil Code.
Furthermore, to enhance the legal protection of data in order to encourage its utilization, the Ministry of Economy, Trade and Industry (METI) amended the Unfair Competition Act to include the wrongful acquisition, disclosure, use and so forth of “data for limited provision” (Protected Data) under the scope of conduct amounting to “unfair competition” under the Unfair Competition Prevention Act. Similar to how trade secrets are protected under the Act, injunctions can also be issued and monetary damages can be awarded by a court in respect of data infringements. However, unlike trade secrets, criminal sanctions will not apply with respect to Protected Data. This amendment is scheduled to come into force on July 1, 2019.
While there are no special rights for databases, such as database sui generis rights recognised in the EU, a database that constitutes a creation in light of its selection or systematic construction of information contained therein may be protected under the Copyright Act. In addition, databases may, in certain circumstances, be protected under the Patent Act, under the Unfair Competition Prevention Act, or by tort claim under the Civil Code.
There are no definitions as to what a “database” or “database right” constitutes, or any specific case laws addressing the extent of protection afforded to databases. Compilation of data in a database will either be recognized and enjoy copyright protection as a literary work under the head of “tables and compilations” under Section 3 of the CA, which includes in particular “tables or compilations, whether or not expressed in words, figures or symbols and whether or not in a visible form”, or as a derivative work under Section 8 of the CA by virtue of being a collection of works protected by copyright or data which constitute intellectual creation due to the selection and arrangement of their contents.
Pursuant to EU directive 96/9/EC of 11 March 1996, a database may be subject to both copyright, which may benefit its author in respect of his original selection or arrangement of the contents of the database, and to a specific, sui generis right that will inure to its ‘producer’ for a period of 15 years, irrespective of the originality of the database. Nevertheless, under the above rules, it is only the database that is protected, not the data itself. The underlying reasoning is that data, as information, should circulate freely and should not be owned by the database creator or developer, unless of course that information is made confidential by an exclusive information holder or recognized as confidential under the law.
There are no specific intellectual property rights which apply to data/databases. However, provided a database is original, it is eligible for copyright protection as a literary work.
In respect of databases German copyright law recognises specific intellectual property rights. There are two kinds of databases. One is an autonomous work and protected by copyright because it is considered a personal intellectual creation (“persönliche geistige Schöpfung”) in accordance with section 4 UrhG. For such databases, a full copyright protection similar to software applies. The other type of database is protected because of the financial investment which was required for creating it. The latter is regulated in sections 87a to 87e UrhG which are based on the EU Database Directive (95/46/EG). These sections of the law rule that only the producer of the database is authorised to reproduce, distribute and publicly report the database as a whole or a part of essential type and extent. The European Court of Justice has decided that the essential part of a database refers to the extracted or reused volume of the database (judgment in the case C-203/02). An essential part is therefore considered to be 10 percent or more. Excluded from protection, however, are reproductions for private use, for purposes of scientific research pursuant to sections 60c and 60d and for illustrative use in education pursuant to section 87c UrhG.
Yes, Copyright Law stipulates database as copyrightable object. However, as a general rule, in order for database to enjoy copyright protection, it must satisfy the requirements of a copyrightable work, that is:
- creation in the field of science, art, and literature;
- resulted from inspiration, ability, idea, imagination, dexterity, skill or expertise; and
- expressed in tangible form.
For the purpose of the Copyright Ordinance, the entitlement to copyright in compilation of data or other material shall not extend to data or other material itself, and shall be without prejudice to any copyright subsisting the data or other material, that is to say, the copyright shall subsist to the extent of the compilation only.
Yes. According to Law no. 8/1996 on copyright and related rights (the “Copyright Law”) a sui generis right for the protection of databases is provided for 15 years. The data base owner has the exclusive right to authorize or forbid the extraction or reuse of the whole or substantial part of the database. This sui generis right applies irrespective of the fact that the database or its content are protected under copyright or any other right.
Intellectual property rights are recognised for databases that meet certain requirements under the Copyright Act and Unfair Competition Prevention and Trade Secret Promotion Act.
Under the Copyright Act, a database is defined as “a compilation whose materials are systematically arranged or composed, so that they may be individually accessed or retrieved,” while a database producer means “someone who has made a substantial investment in human or material resources for producing a database, or for the renewal, verification or supplementation of the database’s materials.” A database producer has the right to reproduce, distribute, broadcast, or interactively transmit the entire database or considerable parts of it.
Under the Unfair Competition Prevention and Trade Secret Promotion Act, a trade secret is defined as “information, including a production method, sale method, useful technical or business information for business activities, that is not known publicly, is the subject of reasonable efforts to maintain its secrecy, and has independent economic value.” If data/databases qualify as trade secrets under the above definition, the person who has the rights to the subject data/databases may seek an injunction against anyone who tries to infringe upon his/her rights with respect to the data/databases or request compensation for any damages he/she suffers as a result of the infringement.
Yes, data bases are granted with two specific types of protection according to the Intellectual Property Act:
- Protection provided due to their structure and form of expression:
Article 12 of the Intellectual Property Act provides protection for collections of the works of others or of data or of other independent elements, such as anthologies and databases, which, by reason of the selection or arrangement of their contents, constitute intellectual creations, without prejudice to any rights that might exist in such content. This protection shall solely apply to their structure, meaning the form of expression of the selection or arrangement of their contents, but shall not extend to those contents. Collections of works, data or other independent elements systematically or methodically arranged and individually accessible by electronic or other means shall be deemed to be databases.
- Protection provided due to the substantial investment in the database (sui generis right):
Article 133 of the Intellectual Property Act protects the substantial investment, assessed either qualitatively or quantitatively, made by its manufacturer in the form of finance, time, effort or energy or other means of similar nature spent in the obtaining, verification or presentation of its contents. By the protection provided through this article, the manufacturer of a database may prohibit:
a) the extraction and/or re-utilisation of all or a substantial part of the contents thereof, evaluated qualitatively or quantitatively, provided that obtaining, verification or presentation of such contents represents a substantial investment in terms of quantity or quality; and/or
b) the repeated or systematic extraction and/or re-utilisation of insubstantial parts of the contents of a database implying acts that conflict with normal exploitation of that database or unreasonable prejudice towards the legitimate interests of the manufacturer of the database.
The sui generis rights shall apply regardless of whether or not such database is vested with other intellectual property rights and without prejudice to any rights existing within their contents. Therefore, the same database can be protected both by Article 12 and Article 133 of the Intellectual Property Act in case its structure, meaning the form of expression of the selection or arrangement of their contents can be considered as "original" (Article 12) and in case of the database's obtainment, verification or presentation has constituted a substantial investment for the database manufacturer (Article 133).
There is no specific recognition of intellectual property rights in respect of data/databases. It is nonetheless possible for databases to acquire copyright protection under section 49 of the Copyright Act, which was implements Directive 96/9/EC. The article stipulates that a person who has created a catalogue, chart or similar, in which a great number of data have been compiled, or which is the result of a big investment, has the exclusive right to produce copies of the work and make it accessible for the public. The aforementioned right is valid until fifteen years after the year of creation of the work have passed. If the work has been made accessible for the public within fifteen years, the right becomes valid until fifteen years from the publication have passed.
Pursuant to Article 7 of the Copyright Act, “A compilation work is a work formed by the creative selection and arrangement of materials, and shall be protected as an independent work. Protection of a compilation work shall not affect the copyright in the work from which the material was selected and arranged. Databases will be deemed as a “compilation work”, if the arrangement of the data meets the above requirements.
Yes. IPL states that database producers are entitled to enable or prohibit transfer, distribution, sale, lease or public dissemination of database. The protection envisaged for database producer is fifteen years as of publication.
As a general principle, there are no intellectual property rights ("IPRs") in data itself, although databases may be protected by IPRs. The CDPA gives copyright protection to the author of a database for the period of 70 years from the calendar year in which the author died (section 12(2)). Moral rights, which grant rights such as the right to be identified as the author of the database (sections 77-79) will be granted to the author, unless the database was created in the course of an employee's employment (sections 79(3) and 82(1)).
The Copyright and Rights in Database Regulations 1997 give the author a database right for 15 years from the end of the calendar year in which the making of the database was completed, or if a substantial change is made to the contents of a database so the database can be considered to be a "substantial new investment", 15 years from the end of the calendar year in which the substantial change was made (Regulation 17).
A patent may be available under the Patents Act 1977 if the database can be shown to achieve a technical effect that is novel and inventive (section 1). Databases used to implement new business methods are not, however, patentable (section 1(2)(c)).
There is no sui generis protection of databases under U.S. law. Under Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991), the United States Supreme Court held that copyright protection is only provided to those original components of the database, and does not extend to the underlying material or data. (17. U.S.C. § 103(B)). No matter how much eﬀort (i.e., “sweat of the brow”) is put into creating a database, only the original elements of the database are protected by copyright.
In most cases, only the selection, coordination, and arrangement of facts is protectable, (17 U.S.C. § 101), and then only if it is original. The Feist case addressed a phone directory, and the Court held that neither the elements of the database (phone numbers) nor the selection (all numbers within a geographic area), coordination (organized by surname), or arrangement (alphabetical order) were protectable under U.S. copyright law.
There are no specific intellectual property rights which apply to data and databases. However, the Copyright Act 1968 (Cth) recognises copyright subsistence in a collection of data, a dataset or a database provided it is original, expressed in material form and the other elements of copyright protection are established. Copyright protection is limited however, given copyright cannot subsist in the underlying data itself. Furthermore, the physical design and layout of an electronic circuit automatically attracts intellectual property rights under the Circuit Layouts Act 1989 (Cth). However, as recently outlined in Lumen Australia Pty Ltd v Frontline Australasia Pty Ltd  FCA 1807 ('Lumen'), one key consideration under the Circuit Layouts Act 1989 (Cth) is whether the circuit constitutes an 'integrated circuit'. In Lumen, the relevant PCBA was not considered an integrated circuit as the active and passive elements were not 'integrally formed in or on a piece of material' as required by the statutory definition of 'integrated circuit'.