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Protection of creative and non-creative databases

All around the world databases are copyright objects and are protected in accordance with its tenets. A database is a compilation of works, data or other materials, i.e. collection of facts, arranged in a systematic or methodical way. In other words, the data are made up based on the logical rules set up by the compiler.

The facts themselves can not be protected under copyright but their organization and layout can, provided that the compilation shows a certain level of creativity on the part of the author.

Usually creative databases are subject to copyright protection. Herewith, in different jurisdictions the creativity level has not been determined explicitly. Therefore, in the world there formed two approaches: protection of creative and non-creative databases.

creative approach

In the making process of a database intellectual human resources are involved which are appeared in a systematic selection and creative arrangement of materials.

non-creative approach ( ‘sweat of the brow’ right)

A synonym of non-creative databases is a metaphor ‘sweat of the brow’ that means that a product is not creative enough, however, the author put tremendous effort and energy, involved technical resources, made significant investments during the making process. Although such databases are not creative, they require significant quantitative and qualitative investments fron the point of resources and elapsed time.

The European Union jurisdiction. Sui generis right

The fundamental legal act in the European copyright law field is the Directive 96/9 adopted in 1996, which Directive defined a database 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.

The Directive legitimizes and equates protection of both kinds of databases – creative and non-creative, i.e. made with substantial human, technical and material resources involved. The latter are protected with so called special right - sui generis right.

In a defeat for North American database interests, the sui generis right granted under the Directive refers only to databases created by companies which companies are located in countries that are members of the EU. Thus, databases created by European companies and their subsidiaries have a greater chance for protection in contrast to non-European firms.

The USA jurisdiction. The minimal level of creativity

Pursuant to the USA copyright Act a database is a collection and compilation of preexisting facts or data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship. The preexisting materials may be protected by copyright, or may be unprotectable facts or ideas.

As an example we can give a USA presidents’ citations database. The standalone citations are copyright objects. Along with that selection of particular phrases in the whole is recognized as an original product which, in its term, is also subject to copyright protection.

Another prominent example of facts structuring is a database of Internet locations for selected legal articles. Each location contains the factual information, namely, that a particular article can be found at the specific URL-address. The URL-addresses themselves are unprotectable by copyright law and may be freely copied by anyone. At the same time copying of the whole database or its substantial portion infringes the copyright. In this case the creative idea consists in the structural arrangement of locations, for instance in accordance with subject sections. The USA law does not prohibit extraction of unprotectable data from protectable database. Thus, a database of unprotectable objects, such as basic facts, may be protected only as a compilation.

Feist Publications, Inc.’s litigation

In the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc., the U.S. Supreme Court ruled that a compilation work such as a database must contain a minimum level of creativity in order to be protectable under the Copyright Act.

Rural Telephone Service Company, Inc. was a local telephone company in Kansas that published telephone directories based on data that it obtained from its subscribers. Feist Publications, Inc. was a publisher of area-wide telephone directories covering a much larger geographic range than Rural's directories. In order to publish its white pages, Feist needed to use the information Rural had in its telephone directories. Feist first tried to license the information in Rural's white pages directly from Rural. When Rural refused, Feist extracted the listings it needed from Rural's directory without Rural's consent. Although Feist altered many of Rural's listings, many were identical to listings in Rural's white pages. Rural sued Feist for copyright infringement in the compilation that made up its white pages. Two lower courts ruled in Rural's favor.

The Supreme Court, however, held that Rural's white pages are not entitled to copyright protection, since the white pages did not meet the statutory requirement for originality. According to the Supreme Court, a compilation is not copyrightable per se, but is copyrightable only if its facts have been selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. According to the Court, the statute envisions that some ways of selecting, coordinating, and arranging data are not sufficiently original to trigger copyright protection. Rural's selection of listings--subscribers' names, towns, and telephone numbers--was obvious and lacked the modicum of creativity necessary to transform mere selection into copyrightable expression. Arranging names alphabetically in a white pages directory is so commonplace that it has come to be expected.

This holding overruled numerous lower courts that adopted a "sweat of the brow" or "industrious collection" test of copyrightability. As a result of the Supreme Court's holding in Feist, it is clear that not all databases are protected by copyright law as compilations.

The Russian Federation jurisdiction. 10 000 information elements

The Russian civil law stipulates the exclusive right for a creator of a database, which database is made with significant financial, material, managerial and other investments involved, i.e. actually recognizes the ‘sweat of the brow’ right.

However, in the Russian national law there exist a crucial note, namely, that such a database shall comprise not less than 10 000 independent information items. In this case the product will be recognized laborious and requiring human and other investments.

The exclusive right for a database arises from the moment of termination of its creation and lasts for 15 years starting from the 1st of January of the year following the year of creation or for 15 years from the promulgation moment starting from the 1st of January of the year following the year of promulgation. During the whole validity term of the exclusive right for a database the rightholder has the right to register it in the Russian Patent Office. The registration process usually takes about 2-3 months and envisages formal examination.

In that way, such copyright object as a database has some peculiarities in Russia, namely:

- registration of the exclusive right for a database is possible in the Russian Patent Office only;
- it is necessary that a product contains not less than 10,000 items in order to have the exclusive right registered;
- the exclusive right for a database is valid during 15 years;
- the validity term may be repeatedly renewed in case of database correction.

Pursuant to the statistics of the Russian Patent Office about 1,500 – 2,000 databases applications are submitted in Russia every year. At that, approximately 90% of them get registration.

Summarizing all the above, one can make a conclusion that in different jurisdictions of the world the attitude to a database as a copyright object is ambiguous. In some countries a rightholder is recognized a person who made tremendous efforts to its creation, at this, it is not compulsorily that the product has an original expression, in other countries, vice versa, involved investments are ignored and only a person who created an original product may become a rightholder. But in spite of different attitudes, annually a great quantity of databases is created and registered all around the world, at this, databases oftentimes perform as litigations subject. This serves an evidence of vigorous functioning and development of the intellectual property system in the whole and the copyright in particular.

Author: Julia Nikoleva


Civil law of the Russian Federation

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