• IPTT Team

Database Protection under Copyright Law

Updated: May 6


Database is a collection of data arranged in a very systematic way to allow for the easy way

to find out the information and is in electronic form. A database is distinguished always from

a database system (sometime known as database management system) which is basically

software. A database of computer means a representation of information, knowledge, facts,

concepts or instructions in text, image, audio, video that is prepared in a formal manner and

has been produced by a computer system or a computer network. A database collection is of

records each of being a collection of records, each of which contains one or more fields (i.e.

pieces of data) about some entity (i.e. object) such as a person, organization, city, product,

work of art, recipe, chemical or sequence of DNA. For example: for database we can add the

name, employee identification number, address, telephone number, date of employment

started, position and salary for each worker.


A minority Court before and after Copyright Act 1976 adopted the “sweat of the brow”

doctrine and protected database that lacked any element of creativity or originality. A

database is eligible for copyright protection if it is a great deal of effort, skill and labour. For

getting this protection it has to satisfy the test of originality. Compilation of non-original

works may also possess requisite originality. Original does not mean the expressive original

or the inventive thought. Copyright laws are not concerned with the origin of ideas, but with

the expression of thoughts and in case of literary work with the expression of thoughts in

print or in writing. The author who compiles makes these selection items individually of the

database so as to include them in:-- (a) In orderly manner; (b) arrangement in an effective

way for users; (c) A direction of compilation is sufficiently original or not.


The originality which we are talking here is related to the expression of thought but copyright

law does not require that the expression must be original or novel form only thing that the

work should be not be copied from another work and it should originate from author’s skill

and labour. 1 Courts have examined whether a work has originality or not to determine if it

may receive copyright protection. Kamar Int’l v. Russ Berrie & Co 2 (originality is the sine quo non of copyright ability). Originality requires an author to contribute something more

than a merely trivial or in other words mere variation which can be recognized as his own.


The Indian Copyright Act which got amended in 1994 provides protection for databases as

‘literary works’, which includes work such as computer programs, tables and compilations

and computer databases. The author’s skill, labour and judgment is protected, irrespective of

the form the product appears. Indian Copyright Act 1957 protects “Databases” as ‘literary

works’ under section 13 (1) (a) of the Act which says that Copyright shall subsists throughout

India in original literary, dramatic, musical and artistic works. 3 The definition of literary

works “as defined under section 2(o) of The Copyright Act 1957 includes computer

programs, tables and compilations including computer databases. Section 63B of The Indian

Copyright provides that any person who knowingly makes use on a computer of an

infringement copy of computer program shall be punishable for a minimum period of six

months and maximum of three months in prison. Fines in the minimum amounts of

approximately Rs.1250 up to a maximum of approximately Rs.5000 may be levied for second

or subsequent convictions- imprisonment for a minimum term of one year and maximum of

three years, and fines between Rs.2500 and Rs.5000. Databases is recognized by Indian

Courts. Any infringement occurs to databases the outsourcing parent entity will come under

Copyright Act also.


The Information Technology Act 2000 says, “Data” under section 2 (o) is like a

representation of information, knowledge, facts, concepts or instructions which are been

prepared or have being prepared in a formalized manner and is intended to be processed, is

being processed or has been processed in a computer, computer system or computer network and may be in any form like magnetic or optical storage media, punched cards computer printouts. The term ‘computer database’ has been defined in Information Technology Act 2000 under section 43 explanation (ii) as a representation of information, knowledge, facts, concepts or instructions which are been prepared or have being prepared in a formalized manner and is intended to be processed, is being processed or has been processed in a computer, computer system or computer network that are intended for the use in computer, computer system or computer network. Section 43 of The Information Technology Act 2000 provides for compensation to the aggrieved party up to one crore of rupees from a person, who without the permission of the owner or the person in-charge of a computer, computer system or computer network secures access to the system or download data, copies or extracts any data or database or any kind of information from the said computer, computer system or computer network or secures access to the system or download data, copies or extracts any data or database or any kind of information from the said computer, computer system or computer network which includes the data hold or stored in any removable storage media. Crimes like cracking the computer codes, computer trespass, digital copying, violation of piracy, data theft, etc., are dealt in section 43 of the IT Act 2000. Section 66 of The Act provides penal liabilities to the person who with the intent to cause or knowingly that he is likely to cause wrongful or loss or any kind of damage to the public or any person tries to alter or destroy any information residing in computer resource or diminishes its value or utility of affects it injuriously by any means, the term commonly used for such crime is “Hacking”.


A database should be given a copyright protection even if they are the compilation of non-

original works as they are the result of skill and labour employed by the author in creating the

work. For example: A database of articles on ‘Indian Intellectual Property Laws’ should be

given copyright as it is a work which is the result of someone’s labour, skill and capital.


Therefore many countries treat database as literary work and copyright protection has been

given to databases only if they are original. Databases have been given protection under

different copyright laws under literary works. In India, databases have been treated as literary

works. According to Section 2(o) of The Copyright Act 1957; ‘literary work’ includes

computer programs, tables and compilation including computer databases.


A recent decision of the Federal Court, Telstra Corporation Ltd vs. Desktop Marketing

System Pvt. Ltd, 4 has clarified that in Australia only a low level of creativity and originality

is required for protection. Under The Copyright Act database is considered as literary works.

For the purpose of the Copyright Act, ‘literary work’ includes tables and compilation

expressed in words, figures or symbols. In this case the literary work under consideration

were the White Pages and The Yellow Pages published by Telstra and various unpublished

Telstra heading books.


COMPULSORY LICENSING IN COPYRIGHT

Under section 30, provides that where a person to whom a license relating to copyright in any future work is granted under this section 30, dies before it comes into existence, his legal

representatives shall be entitled to the benefit of the license.


Section 30A of The Copyright Act,1957 declares that the provisions of Sections 19 & 19A, shall with any necessary adaptations and modifications, apply in relation to a license U/S 30 as they apply in relation to assignment of copyright in a work.


i. Section 19 speaks about mode of assignment

ii. Section 19A deals with the dispute with respect to assignment of copyright

iii. Section 30 provides the license by owners of copyright


Section 30A of The Copyright Act 1956 expresses the real picture of the occurrence while the owner of the copyright in any work grant any interest in the right by license. The necessary adaptations and modifications may be done and that shall apply in relation to licenses by owners of copyright. The mode of assignment and disputes with respect to assignment of copyright are closely related to license of copyright.


COMPULSORY LICENSE IN PUBLISHED OR UNPUBLISHED WORK

Compulsory license is the term generally applied to a statutory license to do an act covered

by an exclusive right without the prior authority of the right owner. Compulsory licensing

allows for the use of protected (in the case of copyrighted material) without the prior

permission of the owner of the right.


Section 31 of The Copyright Act provides for the compulsory licensing of copyright in case

of works that are withheld from public. In case the Copyright owner has refused to:


Republish or allow for the republication of the work or has refused to allow for the performance of the work in public due to which the work is withheld from the public; Allow communication of the work to the public by way of broadcast of such work, or in the case of sound recording the work recorded in such sound recording on terms which the complainant considers reasonable.


The Copyright Board can, after providing reasonable opportunity for the owner of the copyright to be heard and after conducting an enquiry and if satisfied, can direct the Registrar of Copyrights to grants a compulsory license to the complainant to republish the work, broadcast the work or communicate it to the public as the case may be. Upon such direction, the Registrar of Copyright shall grant the license to the complainant. Further a compulsory license can also be granted in case of unpublished Indian works. Section 31A provides for the same. In case of an unpublished work wherein the author is dead or unknown or cannot be traced, any person may apply to the Copyright Board seeking for a license to publish such work.


The essential target of necessary permitting is to guarantee the accessibility of copyrighted

material. The Indian Copyright Act stipends insurance to crafted by scholars, craftsmen, and

so on so they can profit by the aftereffects of their diligent work and innovativeness. Be that

as it may, this includes some significant pitfalls i.e., the work ought to be accessible for the

entrance and reasonable use for different people.


There are times when copyright proprietors will not part from their work. In such a case, so as to guarantee accessibility of copyrighted material to people in general and free stream of thoughts and data without encroaching the privileges of the copyright proprietor, mandatory permitting ends up fundamental.


Entertainment Networks (India) Ltd. V. Super Cassettes Industries Ltd, 5 in this case, Radio

Mirchi was playing music, the rights of which are held by Super cassette Industries. The

music Company filed permanent injunction and while the suit was pending, the FM Operator

filed an application before the Copyright Board for the grant of compulsory license Under

Section 31(1)(b) of the Copyright Act. The question that arose here was whether in such a

certain circumstances, granting of a compulsory license was viable. The broadcaster, i.e.,

Radio Mirchi argued that since the license has already been granted to the AIR and The

Radio City, there was no ground to which a license to Radio Mirchi should be denied. The

Court held that since a compulsory license can be granted on the grounds stated Under

Section 31A of the Copyright Act, i.e., only when access to the work has been absolutely

denied to the public. In this case, license has already been granted to AIR and Radio City.

Therefore, it was not absolutely barred to public access. Therefore, the argument of Radio

Mirchi holds no water and they were liable for infringement of copyright.


1. Journal of Intellectual Property Rights, Vol 9, September 2009

2. 756 F.2d 1059, 1061 (9th Cir. 1981)

3. The Indian Journal Of Intellectual Property Rights

4. [2001] FCA 612

5. (2008)37 PTC 353 (SC)


Prepared by:
RIMA GHOSH( 2nd Semester, LL.M Student, Amity Law School, Kolkata) ; JINISHA BHANSALI ( 2nd Semester, LL.M Student, Amity Law School, Kolkata)
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