[BreachExchange] Legal protection of databases

[Audrey McNeil]

http://www.thedailystar.net/law-our-rights/legal-protection-databases-1235332

Databases play instrumental role in the development of global information
infrastructure. They are developed with aims, inter alia, for faster
services in all service sectors like recreation and tourism, healthcare,
banking, insurance, real estate etc. Databases contain data on basic
information collected, arranged, classified and stored targeting these
sectors. Like others, the Government of Bangladesh has also been developing
different kind of databases, e.g. database on voter registration, etc.
Non-commercial nature of the government databases keep them away from
copyright domain. Whereas, these abovementioned databases easily accessible
online can be copied without the permission of the owner or developer,
modified and re-used by others using sophisticated devices. Even though in
some jurisdictions, such databases enjoy copyright protection once they
meet some criteria, the status of these databases which can be termed as
'non-original databases' is somehow obscure in Bangladesh context as they
lack the requisite originality or creativity to qualify for copyright
protection, even though they require substantial amount of investment and
intellectual input and effort.

A number of European countries and Mexico have introduced sui generis form
of legal protection of such 'non-original' databases from copyright
violation. The Directive 96/9/EC of the European Parliament and of the
Council of 11 March 1996 on the legal protection of databases defines
'database' in article 1(2) 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". Exactly same definition is
incorporated in the World Intellectual Property Organization (WIPO)'s
proposed Convention on Legal Protection of Database which is in the
consultation process for years. Same is the position under the Copyright,
Designs and Patents Act, 1988 of the United Kingdom.

Under article 3(1) of this EU Directive, 'databases which, by reason of the
selection and arrangement of their contents only, constitute the author's
own intellectual creation shall be protected as such by copyright.'
Therefore, it is apparent that if any data is systematically or
methodically arranged in a way that their contents constitute author's own
intellectual creation that shall be protected by copyright. Pertinent to
mention here that the very content of the database can be protected under
genera copyright law and the same is confirmed by article 3(2) of the EU
Directive. The copyright holder of such 'non-original' databases granted
for systematic and methodical arrangement of contents, copyrighted or not,
enjoys some common rights under this Directive. It is also known as the
'sweat of the brow' or 'industrious collection' doctrine which asserts that
the copyright should be extended as a reward for hard work and investment
for compilation work to develop the database.

In the USA, under the concept of 'compilation copyright', the compilation
of works are similarly protected if the work is selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship. The Agreement on Trade-Related Aspects of
Intellectual Property Rights has considered the word 'compilation' in
article 10(2) and provides that compilation of data, which by reason of the
selection and arrangement of their contents constitute intellectual
creations, shall get copyright protection. Berne Convention for the
Protection of Literary and Artistic Works, 1979 has used the word
'collections' and covers collections of literary or artistic works like
encyclopedia and anthologies under copyright protection as they constitute
intellectual creations by reason of the selection and arrangements of
contents. Similar language is adopted in article 5 of the WIPO Copyright
Treaty, 1996.

In Bangladesh, within the ambit of the Copyright Act, 2000, the literary,
dramatic, musical or artistic work, cinematograph film or photograph, sound
recording and computer program and broadcast reproduction right or
performer's right, etc. can be protected. From the forms available in the
website of the Copyright Office of Bangladesh, it is also certain that the
copyright applications can be made for software, website, and mobile apps.
Albeit, the status of these 'non-original' databases developed by
systematic and methodical arrangement of contents are certainly uncertain.
As a result, the status of USA's 'compilation copyright' or internationally
recognised 'collection' are not clear in Bangladesh context also as it is
apparent that the word 'compilation' as used twice in the Copyright Act,
2000 i.e. sections 72(1)(2) explanation and 79, and the word 'collection'
as used in a number of instances in the Act do not intend to include these
non-original databases.

Fortunately, section 54(2)(b) of the Information and Communication
Technology Act, 2006 has defined the words 'computer database' as
'representation of information, knowledge, facts, concepts, or instructions
by way of texts, image, audio or video prepared in a formalised manner
through computer, computer system or computer network' and provides for
punishment for downloading, copy or extraction of data from any computer,
computer system or computer network without permission. Nevertheless, it is
uncertain if the same provision can be applied in case of online databases.

In the absence of specific legal provision on database protection, data can
be leaked and utilised in a wrongful manner. The entrepreneurs will face
huge financial loss, which will discourage them to take similar ventures
leading to slow progress towards government's aspired 'digital Bangladesh'.
Even though no such thing has yet tested by the municipal courts of law,
due to the wide use of computer and internet and the development of
database industry, it may be anticipated that such issues will be an issue
of contention in the near future. Therefore, the copyright authority can
take initiative to clarify its stand regarding the protection of databases.

In some jurisdictions these databases can be protected through the unfair
competition or misappropriation law. An aggrieved person in Bangladesh may,
for the time being, find recourse in different provisions of the Penal
Code, 1860. In order to prevent existing employees to copy and use the
content of the database in future, the employment contract should be
drafted carefully to prevent data theft. The public in general who can have
the access to the database and they are also able to copy the content for
possible future use. For them, the database entrepreneurs can think of
introduction of stricter terms and condition even before the use of the
content of the database, where a prospective user need to complete an
online agreement containing the rights, obligations, duties and
responsibilities of the website user in very clear and precise manner.
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