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In the UK, databases can be protected by two different types of intellectual property rights: copyright and database rights. A database can be protected by both of these rights, or only one of these rights.
In order for a database to be protected by either type of intellectual property right, it must fall within the legal definition of a database. According to the legislation, the definition of a database is “a collection of independent works, data or other materials which —
(a) are arranged in a systematic or methodical way, and
(b) are individually accessible by electronic or other means”.
Assuming that there is a database according to the legal definition, it is then necessary to determine which, if any, types of intellectual property rights apply to the database.
Copyright protection
Databases may be eligible for copyright protection because they may be considered as a literary work and literary works can be protected by copyright. In order for there to copyright protection for a database, the database must be original, meaning that the “the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation”. The author means the person who created the database.
The owner of the copyright in a database is the author of the database. However, if the database was made by an employee in the course of their employment, then the employer is usually the owner of the copyright, unless any agreements to the contrary have been made. As commissioned work normally does not involve employment, the author of the commissioned database is the first owner, and the copyright of the database would need to be assigned to the company or individual that has commissioned the database.
Copyright protection lasts for 70 years from the end of the calendar year in which the author dies.
The owner of copyright of a database has the exclusive right to copy the database, issue copies of the database to the public, show the database in public and adapt the database (e.g. by rearranging, altering or translating it). Any unauthorised party that takes one of these actions in relation to the work as a whole, or a substantial part of it, infringes the copyright protection of the database. The term ‘substantial’ in relation to copyright is not defined in legal text but has been interpreted by the court to mean a qualitatively significant part of the copyrighted work. Note that a qualitatively significant part of the work could come from a quantitively small portion of the copyrighted work.
Database right in the UK
A database right subsists in a database “if there has been a substantial investment in obtaining, verifying or presenting the contents of the database”. The term investment is not limited to financial investment and can be any investment, whether it involves financial, human or technical resources. In the context of database rights, substantial can refer to quantity or quality or combination of both. Therefore, unlike copyright, database rights do not require there to have been any intellectual creation in the selection or arrangement of the database in order to subsist.
Importantly, the “substantial investment” must be put into obtaining, verifying or presenting the contents of the database for a database right to subsist. Therefore, a database right will not subsist if the “substantial investment” has only been made in creating the contents of the database.
The owner of the database right is the maker of the database. The maker of the database is the person (or persons) who takes the initiative and assumes the risk in obtaining, verifying or presenting the contents of the database. For databases made on or after 1 January 2021, only UK citizens, residents, and businesses are eligible for database rights in the UK.
The ownership of database rights is similar to that of copyright where ,for database rights in a database made by an employee in the course of their employment, the employer is usually the owner of the database right unless any agreements to the contrary have been made. Again, another similarity with copyright is that, as commissioned work normally does not involve employment, the maker of the commissioned database is the first owner and the database right of the database would need to be assigned to the company or individual that has commissioned the database.
The term of protection for a database right is much shorter than the term of protection for copyright. The database right lasts for 15 years from the end of the calendar year in which completion of the making of the database took place. However, if the database is made publicly available within these 15 years, then the database right term is extended to 15 years from the end of the calendar year in which the database was first made publicly available.
However, each time the database is substantially changed in a way that is considered a substantial new investment, the updated database is protected by a new database right which lasts for 15 years from the end of the calendar year in which completion of the making of the updated database took place, or if later, 15 years from the end of the calendar year in which the database was first made publicly available. Therefore, although 15 years may seem much shorter than the term of 70 years from the end of the calendar year in which the author dies for copyright, databases are often updated by substantially change during their life cycle, meaning that periods of 15 years can be stacked to sum up to a longer term of protection. In addition, due to the nature of database contents, it may be that a database that is 15 years old without having been updated is sufficiently out of date that it would not be as useful as its updated counterpart.
Both copyright and database rights prevent copying of the database. A database right specifies that infringement only occurs if an unauthorised person extracts or re-utilises all or a substantial part of the contents of the database. The definition of ‘substantial’ in relation to database right is that a substantial part of the database can be made up of repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database. Extraction occurs when any contents of the database are permanently or temporarily transferred to another medium. Re-utilisation occurs when any contents of the database are made available to the public.
However, there is no infringement if a substantial part of the contents of the database is extracted or re-utilised, provided that the extraction or re-utlisation occurs at a time when it is reasonable to assume that the database right has expired and provided that reasonable inquiries were made to identify the maker(s).
Author: Phoebe Hunter. If you have any questions about this topic, please do not hesitate to contact us.