Copyright

"In connection with the existence of copyright in a literary or artistic work, a concept used in the Berne Convention and certain EC Directives is that the work must be the author's own intellectual creation."

Explain the significance of this concept, both in relation to the author's right in a literary or dramatic work, and to the producer's sui generic right in a database under EC Directive 96/9 on the legal protection of databases.

Use articles, up to date case law and accredited opinions and writing, and discuss your own thought on each.

Background

Literary works

In order to discuss the significance of this concept, both in relation to the author's right in a literary or dramatic work, and to the producer's sui generic right in a database under EC Directive 96/9 on the legal protection of databases I shall first give an introduction as regards the two separate (yet far from wholly unconnected) areas. Then I shall go on to discuss the significance that the work must be of the authors own intellectual creation, discussing the position as regards literary works and databases separately.

Literary works for this purpose include not only novels, poetry and non-fiction books but also all sorts of other written works which are original. Their literary merit is unimportant. This means that letters, memoranda, directories, e-mail messages and web pages may be protected. Computer programs and code are also protected as literary works. Dramatic works for this purpose include plays and instructions for dance or mime. There must be some spoken words or described actions to perform to distinguish a dramatic work from a literary work. However the fact that a play does not contain any dialogue does not prevent its qualification as a dramatic work

Expressly The Berne Convention Article 2 provides,

The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatic-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

In theory, the original owner of copyright in a given work is the person who created it. There are however, exceptions; in many cases, works created in the course of employment will be owned by the employer. In addition ownership of copyright in a work can change hands after its initial creation, and like any property, can be sold or assigned and may be passed on in a will. All Literary work is owned by the author, but published editions of literary, dramatical and musical works are owned by the publisher.

This is subject to the proviso that works created prior to 1988 may be covered by different regimes. All works will eventually emerge from copyright protection. However, different types of works have different lengths of copyright protection. Also despite the role played by international agreements such as the Berne Convention, different countries apply different lengths of copyright protection to works.

The CDPA 1988 made changes to the length of protection for various in the UK works but, as it does not apply retrospectively, it still remains necessary to be aware of the relevant provisions in the 1956 Act and the 1911 Act. Equally, there are various variations and exceptions, a particularly irksome one being Crown Copyright, which can be longer than normal copyright term. Thus, under the 1956 Act, copyright in a photograph belonged to the person who owned the negative film, unless the photograph was taken under commission. However in this context of our discussion we shall l from herein focus on the post 1988 position form January the 1st onwards.

Databases

While copyright protection can be traced back many years, the protection for databases was actually not strict nor rigid, one could copyright the structure but it was possible to take and re-arrange the content. The directive was therefore also designed to bring the legal framework more up-to-date as well as producing a harmonising) framework which divulges the object of protection, the rights which are granted, to whom, for how long, and exceptions and limitations. However as Cerina 1 states databases are of vital importance for users in many ways as regards the economy but can be copied in a minute with no effort despite the considerable effort and expenditure necessary to their development." Prior to 1 January 1998 it was possible to claim copyright protection for databases provided it could be established that sufficient skill labour or experience had been have been applied to the production of the collection of data. Criminal and civil liability could then arise as described in the preceding paragraphs.

However from the 1st of January 1998, the CDPA 1988 has been amended by The Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) - the 'Database Regulations', which extend the protection afforded to databases. TRIPs Art. 10 and the Database Directive provide for copyright protection for compilations of data which by reason of the selection or arrangement of their contents constitute intellectual creations. The subject matter of protection is collections of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. The right covers websites, encyclopaedias, reference works, anthologies of literary works, atlases, address books, catalogues, newspapers, etc.

It came about after 8 years of analysis and consultation which led to the adoption of the Directive in 1996. It was due to be implemented in Member State legislation by 1 Jan 1998 but the Directive will also directly affect countries with legal links to the EC, such as Norway, Iceland and, by virtue of decision number 59/96 of the EEA Joint Committee, Liechtenstein, the Central and Eastern European Countries (CEECs) and the Commonwealth of Independent States (Russian Federation and others), who will all have to implement the directive at some time in the future

In the context of this piece, one first needs to define a database. Intuitively, this can be a collection or compilation of items, such as data, writings, pictures, sound recordings, films, computer programs, or even a stamp collection. To qualify for inclusion under this definition however, the database has to make these items more easily accessible. This means they deserve some protection from being altered or copied or "stolen", but they also cost money and intellectual effort and this too has to be protected if investors are to be persuaded to risk investing in new products.

As with many areas within the European Community, the original national copyright and database protection environments differed between Member States. Thus there were "unfair competition remedies" in Belgium, France and Germany; in The Netherlands, there was protection for "unoriginal writings" and in the UK and Ireland there was strong copyright protection for compilations. The aim of the Database Protection Directive was to overcome the variation and produce a general environment which protected databases. The directive was of course developed from these national standpoints and so had to encompass many different attitudes and aims

The net result is that databases are now effectively protected through two rights, copyright and the database right, or sui generis right.

The Significance of Intellectual Creation

As from 1st January 1998 a collection within the definition of database may only be protected by copyright if by reason of the selection or arrangement of its contents it constitutes its author's own intellectual creation. Indeed this has been described as "the yardstick for the hurdle of originality."2 This is a different criterion for claiming copyright than existed before 1998 - then the qualification was whether the author could show sufficient 'skill and labour'. This was also known as the "Sweat of the Brow rule" which as stated by Stokes, remains the test of originality for copyright protection for databases in copyright prior to 1998. 3

The final form of the Directive seems to have been greeted with a cautious welcome by some4 but has not been without its detractors. In the case of databases, two separate types of protection have been developed: copyright and sui generis. The new database right protects collections of materials which, although expensive to compile and commercially valuable, lack any element of human intellectual creativity. They were thus said to be inappropriate for protection by copyright. As Rowland states "the value is in the way in which this material is available for retrieval, the sheer value and comprehensive nature of the material which may be accessed and in the manner in which it is to be presented to the user".5

The Database Regulations are based on an EU Directive (Directive 96/9/EC of the European Parliament and of the Council on the Legal Protection of Databases.) A database is defined as under Article 1 a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. 'Database' is also defined to cover collections of independent works, data or other materials which are systematically or methodically arranged and can be individually accessed by electronic or other means.

The definitions in the Directive state that a database should be understood to include literary artistic musical or other collections of works or collections of other materials such as text sound images numbers facts and data. This goes well beyond the 'ordinary' understanding of databases - in the sense that it includes collections other than purely literary works and raises the question whether 'database' is intended to include - An anthology of poems, a collection of circuit diagrams or a collection of digital representations of 3D items. It is important to note that an accumulation of material with no way of retrieving specific items, for example some types of data file is not a database and furthermore, a film or literary or musical work as such does not constitute a database either and, even if a music CD is a database, as a rule it will not qualify for either copyright or sui generis.

The Database Directive confers ordinary copyright protection for the aspect of a database that is the result of intellectual creativity in the selection and arrangement of the content. But in addition, or as an alternative, the Database Directive confers a sui generis database right on the maker of a database, provided that there has been qualitatively and/or quantitatively a substantial investment in obtaining, verifying or presenting the contents, Art. 7(1). The right includes among others a sui generis unfair extraction right to the repeated and systematic extraction and or re-utilization of insubstantial parts of the contents of the database, Art. 7(5). This has the effect of preventing two claims to the same database of work by two different people. However as Stamatoudi points out it also paradoxically "can be argued that the sui generic right itself has the potential to create ownership conflicts"6with the original owner.

Copyright protection has been designed to provide a harmonised threshold for protection: thus databases which by reason of selection or arrangement of contents constitute the author's own intellectual creation shall be protected as such by copyright. (NB this protection does not extend to individual contents, which may or may not themselves be protected). Thus, in respect of the expression of the database which is protectable by copyright, the author of a database shall have the exclusive right to carry out or to authorise: (a) temporary or permanent reproduction by any means and in any form, in whole or in part; (b) translation, adaptation, arrangement and any other alteration; (c) any form of distribution to the public of the database or of copies thereof. The first sale in the Community of a copy of the database by the
rightholder or with his consent shall exhaust the right to control resale of that copy within the Community; (d) any communication, display or performance to the public;
(e) any reproduction, distribution, communication, display or performance to the public of the results of the acts referred to in (b).

These rights are provided to the natural person(s) who created the database, or a legal person if provided for under national copyright law (including employers), for a period of 70 years (as a result of Directive 93/98/EEC).

Some exceptions apply however. Thus the normal use by an authorised user cannot be prevented, and, at the choice of the Member States, the reproduction for private purposes of non-electronic databases, for teaching or scientific research, quoting source and to an extent justified by non-commercial purpose, may be allowed. Thus certain limitations and exceptions to the restricted acts have been provided, usually along the lines that the national governments followed prior to the harmonising action. However these exceptions should not unreasonably prejudice the rightholder's legitimate interest or conflict with the normal exploitation of the database in question7

The two rights, copyright and database right, protect different or potentially different people - the 'maker' of the database can claim the protection of the database right whereas the 'author' (a term which acknowledges creativity) may be able to claim the protection of copyright. There is no need to register either right.

The two rights also run for different periods of time. Copyright runs for 70 years from the end of the year of the author's death whereas the database right runs for 15 years from the end of the year of completion of the database. However a substantial updating or verification of the database may start an entirely new 15-year period running. Thus although 15 year period of protection looks meagre next to 70 year copyright period but is capable of countless renewals with re-investment in the database.

Article 7 states that Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.

Article 10 states the term of protection - The right provided for in Article 7 shall run from the date of completion of the making of the database. It shall expire fifteen years from the first of January of the year following the date of completion.

In the case of a database which is made available to the public in whatever manner before expiry of the period provided for in paragraph 1, the term of protection by that right shall expire fifteen years from the first of January of the year following the date when the database was first made available to the public.

Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any 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, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection.

A database falling outside copyright protection may still be protected by the database right provided there has been a sufficiently substantial investment in the obtaining, verification or presentation of the database's contents.

A collection which is not within the definition of a database but is a literary work meeting the skill & labour criterion may still be protected by ordinary (i.e. non database) copyright only even though it is not its author's own intellectual creation.

It is now several years since the Database Directive was passed (Directive 96/9/EC on the legal protection of databases). This directive harmonizes protection for databases in the European Union, and it introduced a sui generis right that protects efforts of database manufacturers and publishers for 15 years where there has been "substantial investment" in data collection, arrangement or presentation. 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.

Certain subject matter is not the intellectual creation of an author, but the creator deserves a certain exclusive right. Sui generis right means a right of its own kind, and these rights must not be confused with actual copyright, as they do not follow the established rights.

UK implementation of the Directive, however, has restricted 'databases' to collections which are literary works only. It is possible that this restricted definition may be the subject of a challenge to European courts. However Lai stats that "protection in the UK arguably foes further then the Database Directive."8 The database right can be claimed by the maker of a database. The 'maker' is defined as the person who takes the initiative in obtaining verifying and presenting the contents of the database and who assumes the risk of investing in that obtaining verification and presentation. There may be joint makers - different persons may do the obtaining, verifying and presenting and may assume the risk of investment.

Once the right has been established then certain defined acts with respect to the database are prohibited by the legislation. These are called the 'restricted acts' which are - The sui generis protection (Chapter III) is in respect of databases involving a substantial investment in obtaining, verification or presentation of contents (finance, time, effort or energy). One can have these rights with or without copyright protection; and they do not affect any rights subsisting in individual contents. In these cases, the holder has the right to prevent (i) extraction and (ii) re-utilisation of whole or substantial part of contents of database. It should be noted that these rights do not prevent public lending. They are conferred on the maker of the database (or the "investor") for 15 years but this can be prolonged into a new term when substantial new investment has taken place. Again, lawful users cannot be prevented from extraction/re-utilisation of insubstantial parts, except if done repeatedly and systematically so as to conflict with normal exploitation or unreasonably prejudice legitimate interest of maker. They must not cause prejudice to other right holders in respect of database content items.

There are also optional exceptions regarding the extraction of substantial parts for private purposes of contents of non-electronic databases, and for the extraction for illustration for teaching or scientific research (obligation to indicate source, and non-commercial use only).

The temporary or permanent reproduction by any means and in any form in whole or in part of the database The translation, adaptation, arrangement or any other alteration of the database Any form of distribution to the public of the database or copies of the database Any communication, display or performance to the public of the database Any reproduction distribution, communication, display or performance to the public of the results of any translation adaptation arrangement or any other alteration of the database

This is a very wide protection - for example simply searching a database electronically may involve the temporary copying of the database to another medium and thus may constitute a restricted act. Restricted acts are allowed where the user has been licensed to use the database or is otherwise a lawful user, when it is for teaching or scientific research but not commercial research and where it is for public security, administrative or judicial purposes

Thus copyright protects the author's own intellectually creative selection or arrangement of the contents of a database whereas the database right protects the investment of the database maker in the obtaining verification or presentation of the contents of a database.

Exceptions to the sui generis right are stipulated in Article 9. Member States may stipulate that lawful users of a database which is made available to the public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents: (a) in the case of extraction for private purposes of the contents of a non-electronic database; (b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; (c) in the case of extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.

Under the Directive there (a) 'extraction` shall mean 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; (b) 're-utilization` shall mean any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission. The first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community; Public lending is not an act of extraction or re-utilization.

The right may be transferred, assigned or granted under contractual licence and shall apply irrespective of the eligibility of that database for protection by copyright or by other rights. Moreover, it shall apply irrespective of eligibility of the contents of that database for protection by copyright or by other rights. Protection of databases under the right shall also be without prejudice to rights existing in respect of their contents. 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 are also not be permitted.

If the database right is infringed by the commission of a restricted act then owner of the right may claim relief by damages, and/or an injunction preventing further restricted acts. Database rights can only be enforced through civil courts. This contrasts with copyright which can be enforced through criminal and civil sanctions. I appreciate that I have strayed out of my territory of advising on criminal liability but I hope that this information my still prove useful.

The directive obviously has international repercussions beyond the EU and its legal partners. And there is no doubt that the possibility of many further mediums for databases. is constantly increasing.9 Copyright protection is thus available to natural or legal persons of third countries, parties to Berne Convention or WTO TRIPs Agreement, except for shorter term of protection (50 years pma under TRIPs). The sui generis protection is available only to makers who are nationals of European Union Member States, or have their habitual residence in the Community, or companies formed in accordance with law of a Member State and having their registered office (plus operations with ongoing link to economy of Member States) central administration or principal place of business within the Community. So many third country nationals will not be eligible. However, under Article 11(3) reciprocal agreements may be concluded with third countries that offer comparable protection to EU nationals/residents.

The Directive has been the basis for the EC position in the WIPO talks and deliberations. Some critics of database protection claim that the new laws actually prevent access to some information, and this has led to a series of discussions with, in particular, the USA. The difference was already considered in the EU during the passage of the Database Protection directive - the original "unfair extraction right" was changed into a full IPR on basis of arguments put forward by the various parties involved.

The directive in Action - British Horseracing Board Limited and others v William Hill Organisation Limited (reported in IHL89, pp63-64).

In the first case in the UK to be tried under the Copyright and Rights in Databases Regulations 1997 the British Horseracing Board (BHB) successfully sued the bookies William Hill for infringement of the database right. The court in this case ruled that in taking information that had originally come from a BHB database and loading it onto its own computers for use on its web site, without the necessary permission, William Hill was infringing BHB's database right.

The BHB is the governing body for the British racing industry and has for well over 30 years maintained a collection of racing information on computer at a substantial cost. The information contained a database includes details on race times, runners, jockeys, owners and relative weights. The information is kept constantly up to date through expensive verification procedures and is made available on a daily basis through the Internet. It is also licensed to certain third parties including Satellite Information Services (SIS).

William Hill has, since the beginning of 2000, offered online betting on horseracing in the UK. Some of the information displayed on William Hill's web site made use of BHB data obtained via SIS.

BHB complained in court that William Hill's use of their data amounted to an 'extraction' or 're-utilisation' of a substantial part of the contents of its database and thus fell foul of the database regulations.

William Hill argued in response that the fact that the information was available via a web site meant that they could not be deemed to have extracted the information since it had already been extracted from a computer to be placed on the web site. William Hill also contended that they could not 're-utilise' information that had been made available to the public. The bookies also argued that the information they used was only a small part of the total information stored on the database and was thus not 'substantial'. William Hill also put forward the rather ingenious proposition that since the BHB were constantly updating their information then effectively new databases were coming into existence all the time. Thus they were extracting or utilising information not from just one database but from many and did not fall foul of the Regulations

The judge rejected these arguments, ruling that to extract merely meant to transfer to another medium and dismissing as irrelevant the availability of the data via the BHB web site. The other contentions put forward by William Hill were also rejected with the court taking the view that databases were typically 'living' and constantly updated compilations of information rather than static or frozen.

The case makes it very clear that the fact that the information contained in a database is made available to the general public does not entitle another party to use it with impunity.

The directive aims to protect investment and thus stimulate the production of databases; it also aims to stimulate third parties into releasing data that hitherto has been kept in private files for fear of it being copied and reused. Access should therefore be improved and provisions have been made to allow exceptions according to national perspectives and habit/history. The directive is of course also subject to other legislation providing for availability of information (e.g. Government information or the sharing of information between certain public interest organisations) but this does not mean that all information should be offered for no charge (in certain cases, public information may be charged for.

  1. Cerina P The originality requirement of the protection of databases in Europe and the U.S 1993 24 IIC 579.[^ Return]
  2. Stamatoudi, Copyright and Multimedia Works Cambridge pg 95[^ Return]
  3. Stokes, S Digital Copyright Law and Practice, Butterworths pg 61[^ Return]
  4. Phillips, J (1996) `The Database Directive: An Introduction' 4 IT Law Today 1.[^ Return]
  5. Rowland, D and MacDonald E, Information Technology Law, 2nd edition, Cavendish pg 84 [^ Return]
  6. Stamatoudi, Copyright and Multimedia Works Cambridge pg 96[^ Return]
  7. Stokes, S Digital Copyright Law and Practice, Butterworths pg 61[^ Return]
  8. Lai, S - The Copyright Protection of Computer Software in the UK Hart Publishing pg 163 [^ Return]
  9. Lpsyzic, D Copyright and Neighbouring Rights pg 119[^ Return]

BIBLIOGRAPHY

Cerina P The originality requirement of the protection of databases in Europe and the U.S 1993 24 IIC

Lai, S - The Copyright Protection of Computer Software in the UK Hart Publishing

Loewenheim, U (1996) `Multimedia and the European Copyright Law' International Review of Industrial Property and Copyright Law 41.

Longdin, L (1997) `Copyright Protection for Computerized Compilations: A Cautionary Tale from New Zealand' 5 International Journal of Law and Information Technology 249.

Lpsyzic, D Copyright and Neighbouring Rights

Phillips, J (1996) `The Database Directive: An Introduction' 4 IT Law Today 1.

Rowland, D and MacDonald E, Information Technology Law, 2nd edition, Cavendish pg 84
Stamatoudi, Copyright and Multimedia Works Cambridge pg 95

Stokes, S Digital Copyright Law and Practice, Butterworths pg 61

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