COPYRIGHT IN DIGITAL ERA

Introduction
The new technology has increased the importance of intellectual property. This new
technology may be in the field of Patent, trade mark, Copyright etc. Copyright protection is
granted to original literary, musical, dramatic or artistic works. But the growth of new
technology has given rise to new concepts like computer programs, computer database,
computer layouts, various works on web, etc. So it is very necessary to know more about
copyright with regard to computer programs/software, computer databases and various work
in cyber space. Copyright is key issue in intellectual property rights in digital era.
Copyright and databases
The term database is used to describe a compilation of works, data or other materials
(i.e. collection of facts) arranged in a systematic or by logical principles methodical way. In
other words, ordered set up by the compiler.
According to Lord Atkinson, for the subsistence of copyright, it is necessary that labour,
skill and capital should be expended sufficiently to impart to the product some quality or
character which the raw material does not possess and which differentiate the product from the
material. Database refers to collection of data, works, information or other independent material
arranged in a systematic or methodical way following some basic principle of compilation;
databases should be given 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 that is the result of labour, skill and capital employed and judgment expended in
selecting and arranging the articles by the creator of the database . And thus, many countries have
treated database as literary work and copyright protection has been expended to databases,
provided, they are original. Database has 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 v Desktop Marketing
Systems Ltd, has clarified that in Australia only a low level of creativity and originality is
required for protection. Data bases can be protected under the Copyright Act as literary works.
For the purposes of the Copyright Act a literary work includes "a table, or compilation, expressed
in words, figures or symbols".
History of Database Protection
The present debate regarding database protection can be viewed simply as an
extension of the historical clash between two conflicting models of copyright protection for
compilations. The first model advocates that databases and factual compilations receive
protection per se, i.e., without any showing of creativity or original authorship. Proponents of
this theory, better known as the “sweat of the brow” or “industrious collection” doctrine,
justify their position by arguing that protection should be extended to databases as a reward
for the hard work and investment required to compile the facts and information contained in
the database. Such a reward provides compilers with the incentive to develop new databases.
Under this doctrine, protection extends to the otherwise unprotected facts contained in the
compilation.
The second model of intellectual property rejects the notion that databases without
any originality or creativity should be protected. Instead, advocates of the second model
would only extend copyright protection to the "expression" contained in the database, which
is limited to the original selection, coordination, or arrangement of facts in the database -- but
not the facts themselves. Prior to 1991, the extension of copyright protection for databases
and other factual compilations remained an unsettled issue in U.S. courts. Most courts refused
to grant copyright protection for databases that did not contain any "originality" in the
selection or arrangement of facts, and Congress adopted this view in the 1976 Copyright Act.
Congress explicitly stated that a copyright in a compilation extended only to the original
selection, coordination in arrangement of material in the compilation.
Nonetheless, a minority of courts before and after the 1976 Act adopted the "sweat of
the brow" doctrine and protected databases that lacked any element of creativity or original
expression.
Test of Originality in Database
A database is eligible for copyright protection if it is a result of great deal of effort,
skill and labor. For getting such protection it has to satisfy the test of 'originality'.
Compilation of non-original works may also possess the requisite originality. Original does
not mean the expression of original or inventive thought. Copyright laws are not concerned
with the origin of ideas, but with the expression of thoughts and in the case of literary work
with the expression of thoughts in print or in writing.
 The compiling author makes his selection of individual items of the database to
include them in an
1. Orderly manner
2. Arrangement in an effective way for users
3. Direction of compilation is sufficiently original.
The originality, which is required, is related to the expression of thought, but
copyright law does not require that the expression must be in original or novel form, only,
that work must not be copied from another work and it should originate from the author. Over
the centuries Courts have examined whether or not a work has "originality" to determine if it
may receive copyright protection. Originality requires an author to contribute something
more than a "merely trivial" variation which is recognizably "his own."
Protection of databases in India
Databases are protected as collections or compilations of literary and artistic works.
The Indian Copyright Act, amended in 1994, provides protection for databases as ‘literary
works’, which amongst others include works such as computer programmes, tables and
compilations, and computer databases (The Copyright Act, 1994). It is the skill, labour, and
judgment of the author that is protected, irrespective of the form in which 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. The definition of literary works “as defined
under Section 2(o) of Copyright Act, 1957 includes computer programmes, tables and
compilations including computer data basis. Section 63B of the Indian Copyright Act
provides that any person who knowingly makes use on a computer of an infringing copy of
computer program shall be punishable for a minimum period of six months and a maximum
of three years in prison. Fines in the minimum amount of approximately $1,250, up to a
maximum of approximately $5,000 may be levied for second or subsequent convictions-
imprisonment for a minimum term of one year, with a maximum of three years, and fines
between $2,500 and $5,000. It is pertinent to mention here that the Indian courts recognise
copyright in databases. It has been held that compilation of list of clients/customers
developed by a person by devoting time, money, labour and skill amounts to “literary work”
wherein the author has a copyright under the Copyright Act.
As such if any infringement occurs with respect to data bases, the outsourcing parent
entity may have recourse under the Copyright Act also. The Information Technology Act,
2000 defines “Data” under Section 2(o) as a representation of information, knowledge, facts,
concepts or instructions, which are being prepared or have been 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 net-work and may be in any form (including)
computer print outs, magnetic or optical storage media, punched cards.
The term computer Data Base has been defined under the Indian Legal System for the
first time in the information technology Act, 2000 under Section 43 explanation (ii) as a
representation of information, knowledge, facts, concepts or instructions in text, image,
audio, video data being prepared or have been prepared in formalized manner or have been
produced by the computer, computer system or computer net-work are intended for use in
computer, computer system or computer network.
Section 43 of 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 who is in charge of computer, computer system or computer net-work
secures, access to the system or down-loads data or down-loads, copies or extracts any data
or data base or information from the said computer, computer system or computer network or
secures access to the system or down-loads data or downloads, copies or extracts any data or
data base or information from the said computer, computer system or computer network
which includes the data hold or stored in any removable storage media. Section 43 of the Act
is very wide and covers instances of cracking the computer codes, computer trespass, digital
copying, violation of privacy, data theft etc. Section 66 of the Act provides for penal
liabilities to the person, who with the intent to cause or knowingly that he is likely to cause
wrongful or loss or damage to the public or any person, alters or destroys any information
residing in the computer resource or diminishes its value or utility or affects it injuriously by
any means, the term commonly used for such crimes is ‘hacking’.