Do you recognise specific intellectual property rights in respect of data/databases?
Technology (second edition)
No specific intellectual property rights exist under Indonesian law in respect of data/databases.
Databases are protected under the Dutch database act 1999. A database is defined as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. A database is eligible for protection if the database was the result of a substantial investment in obtaining, verifying or presenting the contents of the database. The creator of the database has the exclusive right to retrieve and reproduce a substantial part of the database which cannot be circumvented by repeatedly and systematically retrieving or reproducing parts of the database by third parties.
The actual data can be eligible for copyright protection if the data meets the requirements for copyright protection, meaning that the data has its own, original character and bears the personal stamp of the maker. The data must be the result of creative human labour and thus of creative choices. In absence of eligibility for copyright protection, protection of data can be sought through the use non-disclosure agreements.
Generally, the information added to a database is not subject to IP protection. Nevertheless, the form of organization or arrangement of such information (i.e. the database structure) may be protected as a copyright work.
As a general principle, there are no intellectual property rights in data itself, although databases may be protected by copyright. Databases are defined under Luxembourg law as "collections or compilations of works or other independent elements, arranged in a structured way that required a substantial investment".
The Copyright Act provides for copyright protection to the authors of original databases whose structure, by choice or arrangement of the elements they contain, constitute a creation specific to their author, whether accessible by electronic or by other means, with the exception of phonograms and audio-visual works. The copyright protection of databases does not extend to their content nor to the computer programs used for their creation, operation or consultation. The protection lasts during the lifetime of the author and for 70 years commencing January 1st following his or her death.
The Copyright Act provides that a database, the content of which has been the object of a substantial change attesting from a qualitatively or quantitatively substantial investment, may also be protected by sui generis right, and any substantial modification to the content of a database may lead to a new term of protection granted to the database resulting from this investment. The law provides that the sui generis protection expires after 15 years upon the 1st January of the year in which it was completed, or of the year following the date when the database has been made available for the first time.
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.
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 obtaining, verification or presentation has constituted a substantial investment for the database manufacturer (Article 133).
Intellectual property rights associated with the compilation, verification, presentation and a format based usage of data that creates value in such data, are granted and protected under the Copyright Act, 1957. The Act recognises databases as “literary works” and provides both civil and criminal remedies against infringement.
The underlying data does not automatically draw protection under the Copyright Act, 1957 or other similar intellectual property statues. Factors relating to creation, use and application of the data determines the scope and extent of protection that may be availed under the intellectual property laws in India.
Yes. Databases are considered as collections and are afforded similar protections to intellectual and artistic works under Article 6 of Law on Intellectual and Artistic Works numbered 5846. The protection afforded with regards to databases are the same as those afforded to any intellectual and artistic works under the same law. However, the protection cannot be extended to the data and materials contained within the database.
Additionally, makers of the databases (i.e. those who has made qualitatively and/or quantitatively substantial investment in either creation, verification or presentation of the contents) shall have the right of permitting or prohibiting;
a) Permanent or temporary transfer to another medium by any means and in any form,
b) Distribution or sale, rental or communication to the public in any way,
of all or a substantial part of the content of the database contents with the exceptions specified in the Law on Intellectual and Artistic Works and required by purposes of public security and administrative and judicial procedures.
The term of protection granted to the maker of a database is 15 years from the date of publication the database.
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.
Data/databases may be protected under COPA as collective works to the extent they qualify as original creations with individual character with respect to their selection and arrangement. Unlike EU law, Swiss law does not provide for general protection of databases by way of a right of its own (sui generis right) in favour of the creator. If databases do not reach the threshold of copyright protection as collective works, the economic effort to compile such database is generally not protected in Switzerland. In contrast, the UCA protects marketable work results against technical reproduction performed without commensurate effort by the reproducing party (see Question 6).
According to the General Rules of Civil Law, data may be protected in accordance with special laws or regulations. However, under the current legal framework, data is only protected by the Anti-unfair Competition Law as trade secret if it is a qualified subject matter, where the data 1) possesses secrecy, 2) derives economic value, and 3) has utility and is kept secret by its owners through taking certain measures. The database, as a whole, may be protected by copyright as a compilation if the selection or arrangement of the content elements is with originality.
Data, as such, is not subject to intellectual property protection.
Under the Copyrights Act, databases that as consequence of their selection and arrangement constitute intellectual creations, are protected as compilations, enjoying the same protections as literary works (100 years of exclusivity after the author’s death).
Creators of unoriginal databases enjoy exclusivity rights for 5 years, only.
Holders of economic rights of both, compilations and unoriginal databases, have the exclusive right to reproduce, translate, adapt, distribute, and decompile the relevant compilation or database.
While there is neither a definition as to what a “database” or “database right” constitutes, nor has there been specific case law addressing the extent of protection afforded to databases, the 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 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.
Under the French Intellectual Property Code, 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 considered as information and, out of principle, information should circulate freely (unless made confidential by an exclusive information holder or recognized as confidential under the law).
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.
Data or database alone is not copyrightable. However, copyright may subsist in the compilation of the data. In the recent Court of Appeal decision of the Global Yellow Pages Ltd v Promedia Directories Pte Ltd and another matter  SGCA 28, the court ruled that for a compilation of data to be afforded with copyright protection such compilation must contain some element of creativity and have been created by an identifiable human author.
The data may be protected as a trade secret provided it remains as confidential information.
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).
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.
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.
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.