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Copyright Protection for Databases in India

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Manish Jindal

December 6, 2023

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Copyright Protection for Databases in India

India has witnessed a significant shift towards electronic commerce, ushering in an era of increased digital data and reduced reliance on traditional paper documentation.

In this context, the term “database” refers to a structured collection of data, whether in digital or physical form.

Electronic databases, in particular, have become pivotal in modern workplaces, revolutionising how information is organised and accessed, be it on computers or other digital platforms.

Many creators of electronic databases willingly undertake the task of gathering substantial volumes of raw data, fully aware of the associated risks and responsibilities.

This is especially relevant as the demand for databases, such as phone directories, continues to surge across various sectors of the business world.

Databases serve as powerful search engines, simplifying access to vital information.

Entire business models now revolve around the acquisition and management of such databases, generating revenue through avenues like advertising, royalties, or client subscriptions.

This article focuses on copyright protection for databases in India.

Discover how Indian copyright laws safeguard valuable data compilations and what it means for database owners and consumers.

Databases and the Imperative of Safeguarding

With the proliferation of electronic tools, malevolent actors can effortlessly duplicate and disseminate databases worldwide, often at a fraction of the original production cost.

As society increasingly relies on technology and innovative means of data replication, these risks continue to escalate.

Information Technology Act and Regulations

Under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 (or IT Rules), stringent measures are in place to safeguard personal and sensitive data.

While these rules align with international standards for personal data protection, it’s crucial to note that the scope of database rights extends beyond personal and sensitive data.

The IT Rules primarily cover information related to:

a) Passwords

b) Financial information

c) Physical, physiological, and mental health conditions

d) Medical records and history

e) Biometric information

Database Protection in India

India lacks a dedicated database protection law similar to that of the European Union. Sui generis protection, which exists in the EU, is absent in India.

The Indian government maintains that the current level of protection provided by the Copyright Act is sufficient and that there is no immediate need for further protection.

Under Article 21 of the Indian Constitution, every Indian citizen enjoys fundamental rights to liberty and privacy.

The Indian Penal Code of 1860 prohibits data theft, considering information stored on computers as part of movable property, thereby making any form of theft, misappropriation, or criminal breach of trust illegal.

The Indian Contract Act allows for the inclusion of a confidentiality clause in contracts to protect databases.

The Information Technology Act of 2000 serves as a safeguard for sensitive and private data in India. Section 66E of this Act outlines penalties for privacy violations, among other provisions, addressing various aspects of database rights.

Copyright Protection for Databases in India

Database copyright is protected by the Copyright Act of 1957.

The 1994 update to the Indian Copyright Act empowered copyright owners to protect computer-generated works and recognised specific computer programs as a form of literary work.

Subsequent amendments broadened the definition of “literary work” to encompass computer databases, tables, compilations, and software.

As a result, “computer database” is included in the definition of “literary work” under Section 2(o) of the Copyright Act.

Database creators in India often rely on copyright statutes, considering databases as literary collections. India’s adherence to both the TRIPS Agreement and the Berne Convention underscores the need for careful consideration when determining eligibility for copyright protection.

Notably, under the Copyright Act, authorship rights are protected, even in cutting-edge works. While the Indian Copyright Act lacks a clear definition of creativity, Indian courts typically evaluate each case based on its specific circumstances and facts.

Copyright Infringement for Databases in India

In Indian legal proceedings, the “sweat of the brow” concept has played a significant role in establishing copyright infringement for databases.

This concept is commonly regarded as a criterion assessing the level of skill, effort, and judgment invested in creating a database.

Indian courts, in cases such as Govindan v. Gopalakrishna and McMillan v. Suresh Chunder Deb, have consistently ruled that compilations created through substantial investment of resources, including time, money, skill, and effort, qualify as literary works and are eligible for copyright protection.

Courts have emphasised that any degree of creativity, no matter how minimal, within a compilation warrants copyright protection, and individuals cannot benefit from another’s labor without permission.

In a more recent decision, the Delhi High Court clarified that while someone is free to create a compilation similar to an existing one, they cannot exploit the fruits of the compiler’s labor and infringe upon their copyright.

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The court stressed that copyright protection should be granted for a genuinely creative and original approach to gathering facts, without necessarily considering how those facts were initially realised.

This aligns with the U.S. Supreme Court’s ruling in the Feist case, which requires “a modicum of creativity” in the coordination, selection, or arrangement of subjects within a database to qualify for copyright protection.

International Agreements for Database Protection

Several international agreements address the adequate protection of compilations and, by extension, databases.

The Berne Convention, TRIPS, and the Copyright Treaty are the primary agreements in this regard.

Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works offers limited protection for compilations of literary and artistic works.

Article 2(5) specifically covers collections of literary and artistic works, but it doesn’t explicitly mention databases.

However, databases could potentially be considered under the umbrella of “collections” or “literary and artistic works” as per the convention.

TRIPS

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement addresses databases and establishes a framework for their protection.

It approaches database protection by emphasising the structure of the database rather than its content.

In this context, copyright applies to the compilation process itself, not the individual materials within the database.

The protection centers on how the database is organised and structured.

Copyright Treaty

This introduces conditions for protection, primarily requiring that the collection demonstrates intellectual creativity in its selection or arrangement.

Additionally, it includes broader provisions related to copyright protection that impact the legal safeguarding of databases.

These provisions encompass aspects such as the electronic dissemination of copyrighted material, sui generis protection, regulations concerning the manufacture, importation, and distribution of devices capable of bypassing technological protection measures within contracting parties, and the protection of management information rights for the owners of databases covered by copyright protection.

Proactive Measures by Companies to Safeguard Databases

Large corporations highly value their client databases, recognising the connection between database rights and their brand reputation.

This growing recognition has prompted companies to take proactive steps to protect their databases.

An illustrative example is GoIbibo, which recently terminated its contract with a marketing agency that had access to its database for sending promotional emails on behalf of another company.

Many franchising and marketing agreements often include provisions for data sharing and ownership terms in the event of partnership dissolution.

When these agreements involve personal data, especially sensitive information such as physical condition or sexual orientation often included in traditional customer forms, various obligations arise.

Companies, including those in the marketing, restaurant, and retail sectors, are required to develop a privacy policy, which must be communicated to the data providers.

Database Right

In addition to copyright protection, a separate sui generis right is granted to the creator of a database (the individual who initiates it) against the extraction or reutilisation of the database’s contents.

Here are five key points to consider:

  1. This right applies to databases regardless of whether their arrangement qualifies for copyright protection or not, and regardless of the copyright status of individual items within the database.
  2. The focus is on the contents themselves, rather than the organisational structure, allowing for protection when contents are extensively taken out and rearranged to form a significantly different organisation of essentially the same material. This may not necessarily infringe upon the copyright of the original arrangement, but the structural arrangement remains relevant.
  3. The database must result from substantial investment, and it cannot be merely a collection of different works brought together, such as articles or advertisements on a music CD.
  4. The right protects against the extraction and/or re-utilisation of a substantial part, both quantitatively and qualitatively, of the database’s contents. “Extraction” involves transferring contents to another medium, while “re-utilisation” refers to making the contents available to the public through any means. Continuous and systematic extraction of insubstantial parts can still constitute infringement.
  5. The right lasts for 15 years from the database’s completion or from when it becomes publicly available within a 15-year period. Substantial investment in additions, deletions, or alterations restarts the protection period. This means that a dynamic database enjoys indeterminate protection, similar to a copyrighted textbook with regularly revised editions.

These agreements establish minimum protection standards, allowing individual nations the flexibility to provide higher levels of protection.

However, the EU Directive has effectively standardised copyright protection for databases at the levels set by TRIPS and the Copyright Treaty.

Conclusion

Copyright protection for databases has evolved to provide adequate safeguards in our increasingly digital world.

While not all collections may meet the threshold of creative expression, it’s important to recognise that even in the realm of factual data, creative arrangements can emerge.

Copyright legislation has extended its reach to cover electronic forms of database collections, ensuring that creators enjoy exclusive rights over their creations.

This protection prevents the wholesale copying and dissemination of database contents, especially when substantial investment has been made.

As traditional paper-based methods of data storage, such as telephone directories and Yellow Pages, are gradually being replaced by electronic forms, it has become simpler for individuals to duplicate and profit from someone else’s data.

In navigating these complex issues, it’s clear that copyright laws continue to adapt to the digital age, offering creators and users alike a framework that respects both the level of creativity involved and the need for access to valuable information in commercial databases.

FAQs

Can I use data from copyrighted databases for research or personal use?

In many cases, yes. Fair use or fair dealing provisions in copyright law may allow limited use of copyrighted database contents for research, education, or personal purposes. However, commercial use or redistribution typically requires permission.

What should I do if I suspect copyright infringement involving a database?

If you believe someone is infringing on a copyrighted database, you should seek legal advice and consider taking appropriate action, such as contacting the copyright holder or pursuing legal remedies through the courts if necessary.

When database is eligible for copyright protection?

A database qualifies for copyright protection if it involves a significant deal of effort, skill, and labor.

Give an example of copyright infringement for a database.

Let’s say there’s a comprehensive database of tourist attractions around the world, painstakingly compiled by a travel enthusiast over several years.

Each entry contains detailed information about the location, historical significance, and visitor reviews.

Now, if another website or organisation were to copy this entire database, including a substantial portion of its entries, without permission or proper attribution, it would be a clear case of copyright infringement.

The owner of the original database has put significant compilation effort into creating and maintaining it, and copying it in its entirety would violate their exclusive rights to this creative work.

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