BABASAHEB BHIMRAO AMBEDKAR

UNIVERSITY

INTELLECTUAL PROPERTY RIGHTS

ASSIGNMENT

TOPIC: - COPYRIGHT PROTECTION FOR

DATABASES IN INDIA

SUBMITTED TO: SUBMITTED BY:

DR. SHASHYA MISHRA MA’AM PRITHVI RAZE
SCHOOL OF LAW ROLL NO.-214949
 ACKNOWLEDGEMENT

At the outset, I would like to thank God for his blessings and benevolence granting me the
Vigor and audacity to complete my project successfully. I extend my heartfelt gratitude to Dr.
Shashya Mishra Ma’am, for granting me the invaluable opportunity and delve into the
intricate topic of COPYRIGHT PROTECTION FOR DATABASES IN INDIA.

This project has enriched my understanding by allowing me to deeply analyze the topic
including their meanings, essential elements, etc. This is to express gratitude towards a person
who guided and motivated me throughout my assignment period. It gives me immense pleasure
to acknowledge my indebtedness and deep sense of gratitude. I would like to thank my parents
and friends who helped me a lot for the same.
INTRODUCTION

Generally, databases are ensured under copyright laws. India is a notable addressee of e-
business and also gives copyright protections to databases. From the perspective of
computerized database, the necessity of originality and innovativeness reported by law relating
to copyright would be incompatible. In case of collection of work based on facts, the possibility
of being attacked enhances, since fundamental information or details are non-copyrighted,
implying that the substance may undoubtedly be imitated or potentially utilized despite
snooping copyright. Following the significant discussion regarding the requirement to provide
or not provide further security to uninventive or unimaginative compilations, and regarding the
appurtenant method to pursue, worldwide sanctions is nonetheless silent. Modem innovations
encouraged the creation of databases. The benefits of electronic trade have been felt by India.
It has changed the way offices and workplaces function by increasing database bytes and
memory and decreasing the use of paper bundles. A collection of data that has been
systematically arranged and documented, whether on paper or on any other kind of electronic
medium, such as a computer, is referred to as a database. Even though the need for databases
like phone directories is growing in the business world overall, many electronic database
developers are willing to take on the risk and responsibility of collecting a large amount of raw
data and then having to use it. They are a strong search engine that facilitates easy access to
information. The company bases its entire business model on the purchase of such a database
and earns money from advertising, royalties, or client payments.

Database thieves can now replicate any database and distribute it throughout the world using a
range of electronic tools, all for a fraction of the price that would otherwise be required to
produce such goods. As technology develops creative new ways to reproduce and distribute
data products, and as humanity grows more reliant on computers and digital information, these
risks will only increase. It should come as no great surprise that the legal protection of databases
has recently garnered enough public attention. The irreconcilable situation between the
database's creators and authors from one point of view and its users from another is the main
issue with database protection. Because of existing and undeniable collected works, copyright
protection will not apply to information that could be freely copied at that time, even if the
preparation and/or collection of matters involved sufficient creativity.
Database- Meaning and Concept

The word 'Database' has been used to describe as "a compilation of works, data or other
materials (i.e. collection of facts) arranged in systematic or methodical way. In other words,
ordered by logical principles set up by the compiler."2 Technically, the information by itself
may not be protected, however, the collection and management may, only when it proves a
specific degree of originality with respect to the creator. While alluding to databases it is
important to be familiar with original and non-original databases on the grounds that both are
managed under an various circumstances of legal proceedings. Non-original databases,
occasionally referred to as sweat of the temples' principle, are databases that are not original,
however, to a certain extent dependent on a specific degree of investment or effort.

Usually, legal frameworks protects copyright databases that comprise an original collection
under copyright law. At the same time, the degree of originality mandatory for copyright
protection have not been described worldwide and the legal framework of copyright databases
is as yet misty. Several nations give database protection for non-original databases whereas
others have developed a sui generis principle to authorization non-original databases that don't
meet up the essential degree of originality for database protection yet which had been prepared
with substantial investment. In several states, for instance in the US since the Feist principle,
there is no appropriate legal framework for protection for non-original databases.

Section 3A of the UK's Copyright, Design and Patents Act of 1988 defines:

'Databases' as "database means a collection of independent works, data or other materials which
are arranged in a systematic or methodical way, and are individually accessible by electronic
or other means."

The Article 1(2) of the European Database Directive defines '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".
In Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou the Court of
the European Union have lined that the word 'database' means "any collection of works, data
or other materials, separable from one another without the value of their contents being
affected, including a method or system of some sort for the retrieval of each of its constituent
materials."

Legal Protection of Database

This part may be dealt with under three different categories applied for the protection of
copyright databases given as underneath:

1. Protection of Databases via Contracts: Protection of databases via contracts allows a

consumer to exploit the database information under a authorization, for example,
authorisation in the form of a licence, from the database right-holder on disbursement
of a payment, in light of the type of usages as well as royalty. License don't overtake
the rights of the database to the consumer. An agreement might be made
notwithstanding the protection of database under the copyright laws.

2. Database Protection via Copyright Laws: Many states have provided protection to
databases under the copyright laws. Connotations of 'databases' and legal elucidations
of the protection under copyright differs comprehensively from state to state. The
subject of intellectual abilities engaged with the production of databases has been
argued. Most databases don't meet the basic requirements for being protectable under
the copyright laws.

3. Database Protection via Sui Generis: The Database Directive of the European Union
has been adopted by the European Parliament in 1996 recognising the sui generis
principle for the protection of non-original database. As the topic under discussion is
concerned with the protection of database, only second and third categories of the
aforementioned approaches would be discussed in detail underneath.
Database Protection via Copyright Laws

Databases which, because of the collection or organisation of their data, establish the creator's
own intellectual development will be ensured in that capacity by copyright.

Copyright protection is of an intercontinental nature and as such copyright databases nave been
protected by copyright around the world. The standards for the protection can still be different
in state to state.' Copyright protection concerned to databases that are inventive/unique in the
collection or organisation of the information and represents their creators' personal intellectual
formation.

Definition of Copyright

Copyright is "a form of intellectual property law, protects original works of authorship
including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs,
computer software, and architecture. Copyright does not protect facts, ideas, systems, or
methods of operation, although it may protect the way these things are expressed."

Leading Characteristics vis-à-vis Copyright Database

Following are the important characteristics regarding the protection of copyright database:

I. "Under the copyright laws, databases are protected as collections or compilations of literary
and artistic works. The essential requirement is that a database should be the result of its
creator's own intellectual effort and that it achieves a sufficient level of originality.

II. The intellectual skill involved in copyright protection is the conceptual approach to
classification and data organisation, which facilitates quick retrieval and various analyses of
the data.
Many databases do not satisfy such stringent requirements of originality and the interpretation
of the law varies in different countries. A minimum expenditure of time, money and labour
(the Sweat-of-the-brow theory) in compilation of databases was once considered eligible for
protection under the US Copyright Laws; negated in 1991 in the Fiest case. In contrast, a similar
effort in India could receive protection under copyright laws. These limitations have implied
the need for new initiatives for protection of the databases."

Protection of Database Under Indian Copyright Act, 1957

The conventional legal administration concerning intellectual property rights have been used
in recognising and protecting the databases under copyrights. In India, the Copyright Act of
1957 administers the issue of copyright law. The Act came into force with effect from 21
January 1958. The history of copyright law in India can be traced back to its colonial era under
the British Empire. The Copyright Act 1957 was the first post-independence copyright
legislation in India and the law has been amended six times since 1957. Presently, India has
been a member of many significant international conventions dealing with the subject of
copyright law.

Those conventions include the Berne Convention, the Universal Copyright Convention of
1951, the Rome Convention of 1961, the Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) and the WIPO Copyright Treaty (WCT) and the WIPO Performances
and Phonograms Treaty (WPPT).

The Act provides protection to "literary works, dramatic works, musical works, artistic works,
cinematograph films and sound recordings”. The amendment of 1994 has expanded the scope
of Section 2(o) of the Act defining "literary work" including "the works such as computer
programmes, tables and compilations including computer databases". It also contains specific
exceptions under which the extraction and re-utilisation of copyright work is permitted.

For instance, the extraction and re-utilisation of literary work for the use of personal
understanding. Uses of education, exploration or research consist of:
purposes of instructional activity at all levels in educational institutions including schools,
colleges, universities and tutorial institutions, (ii) purposes of all other types of organised
educational activity.

The High Court of Delhi in a leading case relating to copyright database observed that
copyright is "not an inevitable, divine, or natural right that confers on authors the absolute
ownership of their creations. It is designed rather to stimulate activity and progress in the arts
for the intellectual enrichment of the public. Copyright is intended to increase and not to impede
the harvest of knowledge. It is intended to motivate the creative activity of authors and
inventors in order to benefit the public.

Term of Copyright Protection

In cases of "Literary, dramatic, musical and artistic works", the duration of copyright protection
is "lifetime of the author + sixty years from the beginning of the calendar year next following
the year in which the author dies". On the other hand, in cases of "Cinematograph films, sound
records, etc.", the duration of copyright protection is "until sixty years from the beginning of
the calendar years next following the year in which the work is first published".

Exclusions not constitute an Infringement of Copyright in India.

The 'fair dealing approach' given under section 52 of the Act excludes specific acts from the
scope of violation of copyright. It permits-

I. "fair dealing with any copyrighted work for certain specifically mentioned purposes and

II. certain specific activities enumerated in the statute."

III. The fair dealing approach as followed under section 52 of the Act is evidently

VI. private or personal use, including research, and education,

V. criticism or review
VI. reporting of current events and current affairs, including the reporting of a

lecture delivered in public."

"Fair use" is a principle in the law of the US which allows "limited use of copyrighted material
without having to first acquire permission from the copyright holder. Fair use is one of the
limitations to copyright intended to balance the interests of copyright holders with the public
interest in the wider distribution and use of creative works by allowing as a defence to copyright
infringement claims certain limited uses that might otherwise be considered infringement.'"

Originality and Creativity - An Essential Requirement

Database makers are relying on copyright laws as databases are protected as compilations under
literary works. The fundamental condition of originality in collection or organisation of the
facts of the database is essential to attract copyright protection. Moreover, the Copyright law
(as existing in India, US, UK, and other countries around the world) requires that copyright
should exists in original production of authorship. To take copyright protection for a
compilation, it ought to demonstrate some inventiveness or uniqueness in the collection or
organisation of the facts of the compilation. There has been no lucid declaration by the Indian
courts on the impression of originality and the word is not defined anywhere in Indian
Copyright Act. Usually, each case is decided on the basis of its, peculiar, "facts and
circumstances".

Database Protection via Sui Generis

Realising the anomaly in only protecting original databases, the Directive 96/6/ EC adopted by
the European Union (EU) offers two-tiered protection to databases:

I. "First, it offers copyright protection to original databases.

II. Second, it offers sui generis protection to non-original databases."

The sui generis right is the complement set by the Directive to protect the creator of the
database. Copyright is in fact not always well-organized: how could protection be sought via
copyright in a situation in which a database containing data that are not protected by copyright
(a telephone directory for instance), is copied.

In the sui generis rule, the Database Directive states that "Member States shall provide for a
right for the maker of a database which shows that there has been qualitatively and/or
quantitatively a substantial investment in either the obtaining, verification or presentation of
the contents to prevent extraction and/or re-utilization of the whole or of a substantial part,
evaluated qualitatively and/or quantitatively, of the contents of that database". The Directive
permits the maker an special right to prohibit the extraction (or scraping) of or any part of the
database. The Database Directive protects against copying of the database but not the use of
information or data that may be gathered in the database.

The Substantial Investment- An Essential Requirement

The most important contribution, however, is the creation of a new right of intellectual
property, denoted sui generis, to safeguard the contents of databases that do not fill the
requirement of originality. It consists of the possibility of the maker of a database "to prevent
extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively
and/or quantitatively, of the contents of that database [whenever] there has been qualitatively
and/or quantitatively a substantial investment in either the obtaining, veri?cation or
presentation of the contents'37 non-original database receives protection if a substantial
investment is made in obtaining, verifying and presenting its contents. The sui generis right is
only assigned if the producer can prove a substantial investment. In short, the criterion of
originality is replaced by that of the substantial investment in the compilation and elaboration
of the data contained therein. The word 'substantial investment' has not been defined in the
EU's Database Directives however needs to be considered with reference to a "financial and/or
professional investment, which may consist in the deployment of financial resources and the
expending of time, effort and energy made in obtaining and collecting the contents"
The Rights of the Producer- A Second Essential Requirement

Once the substantial investment stipulation is met, the producer has the right to oppose to the
extraction and the re-utilization of the work of the database. This

"Right of extraction" is extremely extensive, by defining extraction as "the permanent or

temporary transfer of all or a substantial part of the contents of a database to another medium
by any means"

*. In addition, the Article 7(2)(b) of the Commission defined the word "re-utilisation" as "any
form of making available to the public all or a substantial part of the contents of a database by
the distribution of copies, by renting, by online, or other forms of transmission, so that online
transmission or use of data would be covered, including the data in value added or derivative
formats. The first sale of a copy of a database within the Community by the right-holder or
with his consent shall exhaust the right to control resale of that copy within the Community."

Duration of Sui Generis Right

The extent of the sui generis rule is fixed for fifteen years. Nevertheless,"any substantial
change, evaluated qualitatively or quantitatively, paves the way for a new and identical period
of protection, so that certain databases can be perpetually protected."

Sui Generis Right- Position in India

India does not have a separate sui generis protection for databases like the European Union. In
India, there is no sui generis protection as the government felt that the current protection under
the Copyright Act is sufficient, and a need for additional protection has not come up. The
threshold for copyright protection is generally higher than one in the sui generis protection
models (merely spending ime and money in putting together a bunch of names and addresses
may fall slightly short of the minimal modicum of creativity that some copyright regimes
demand). It is pertinent to mention that India itself being a commonwealth country follows
the"Sweat of the brow" doctrine.
The Indian courts have therefore protected compilations involving minimal originality stating
that "no man is entitled to steal or appropriate for himself the result of another's brain, skill or
labour even in such works' 40 The underlying principle has been pursued in a number of cases
and it was observed in the case of Burlington Home Shopping Pvt. Ltd. v Rajnish Chibber &
Anr. that "a compilation of addresses developed by any one by devoting time, money, labour
and skill though the source may be commonly situated amounts to a 'literary work' wherein the
author has a copyright". 4 Nonetheless, in a case of Navin J Desai vs Eastern Book Company
the Delhi High Court preferred to follow the Feist standard of 'a modicum of creativity' and
denied protection to copy-edited judgments. The court said in the case that "changes consisting
of changes of spelling, addition of quotations and corrections of typographical mistakes are
trivial and no copyright exists therein"

Leading Cases Concerning Databases Protection Under Copyrights

In Football Dataco & others v. Yahoo UK & others, the Court held that "a database is
protected by the copyright provided that the selection or arrangement of the data which it
contains amounts to an original expression of the creative freedom of its author, which is a
matter for the national court to determine" Accordingly:

I. "the intellectual effort and skill of creating that data are not relevant in order to assess the
eligibility of that database for protection by that right;

Il. it is irrelevant, for that purpose, whether or not the selection or arrangement of that data
includes the addition of important significance to that data, and III. the significant labour and
skill required for setting up that database cannot as such justify such a protection if they do not
express any originality in the selection or arrangement of the data which that database
contains."

In the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc.,the U.S.
Supreme Court observed 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 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 pullisher 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.

The Supreme Court, though, ruled that "Rural's white pages are not entitled to copyright
protection, since the white pages did not meet the statutory requirement for originality under
17 U.S.C.$ 102(a)*. In line with 17 U.S.C.$ 101, the Supreme Court in this case observed that,
"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"

As said by the Supreme Court, the law envisages that various methods of selecting, organizing,
and coordinating facts and information would not be adequately creative to attract the
provisions of copyright law. While applying the condition of creativity and originality, the
Supreme Court said that "Rural's white pages were not selected, coordinated, or arranged in
such a way as to create an original work of authorship.

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 observation of the court has reversed several subordinate
courts observations adopting the "sweat of the brow" rule for copyright protection. In the sweat
rule, "if a compilation was created as a result of a great deal of effort (such as the collection of
thousands of names and addresses), copyright protection would extend to the compilation
regardless of the creativity or originality in the selection coordination, or arrangement of the
facts". In fact, under this overruled doctrine, copyright protection extendedto each fact
contained within the compilation—no extraction of facts from a compilation was allowed.
The Supreme Court expressly stated that this "sweat of the brow" analysis was faulty, and that
copyright extended only to the original selection, coordination, and arranging of data, and not
to any unprotected facts contained within the compilation.

The courts in India appears to support the "sweat of the brow" doctrine embracing the
proficiency, efforts and opinion analysis while setting the issue of the infringement of copyright
databases. In numerous cases, such as McMillan v. Sesh Chunder Deb, Govindan v.
Gopalakrishna, Burlington Home Shopping Pvt. Ltd v. Rajanish Chibber48 and others,
the courts have held that "a compilation developed through devotion of time, capital, energy
and skill, though taken from a common source, amounted to a literary work and was therefore
protected under copyright". It was held in this case that "no person was entitled toseize for
oneself the fruits of another's skill, labour or judgment and even a small amount of creativity
in a compilation was protected".

This undoubtedly confirms that the "sweat of the brow" principle has been pursued while
settling the issue of copyright infringement. The applicability of the sweat principle for the
database protection has been observed in Diljeet Titus, Advocate & Ors v. Alfred A.
Adebare & Orst wherein the High Court pointing to Section 17(1)(c) held that "in case of a
work made in the course of the author's employment under a contract of service or
apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first
of the copyright therein". Rebuffing the protection for "Head notes" arranged by the authors,
the Court in the case of Feist Publications, Inc. v. Rural Telephone Service Co., held that
"protection of copyright must inhere in a creative, original selection of facts and not in the
creative means used to discover the facts".

In Eastern Book Company v. Desai, the Delhi High Court held that "in the case of compilations,
another person can make a similar compilation, but cannot infringe upon the copyright of the
previous compiler by appropriating the fruits of his labour" The Court cited to the Feist
principle of US Supreme Court and alleged that "there should be a modicum of creativity in
the selection, arrangement or co-ordination of the contents of a database to attract copyright
protedion".
 Conclusion

In perspective on the developing significance of copyright databases, it is necessary that the

situation as for the protection of copyright databases should be explained as soon as feasible.
The reason for the protection of copyright database as elucidated by the Indian Courts is
conflicting with the fundamental dictums of copyright laws and an appraisal is required
incidentally. The 'sweat of the brow' principle had been established to be authoritatively flawed
while applying to copyright databases and ultimately the Courts in India have assumed its
inherent irregularities.

The 'modicum of creativity' or the 'feist principle' has conferred much significance to originality
and creativity of the work and has all around associated in its systematic and investigative
bases. Additionally, one more question that should be taken care of is the protection of non-
inventive or non- original copyright databases. The objective of the copyright law is to support
knowledge via considering authorisation to use database records and encouragement to provide
data accessible at the outset.

A sui generis principle of copyright law might, hence, weighing up the contending interests via
establishing the sui generis principle in a way that thwarts syndication of data. A partial and
restricted standard on authorisation of database records is required to be established in support
of copyright database holders. That standard should, nonetheless, be just an exclusion to the
general standard of free right to use to information by people in general and not the other way
around. Such a methodology might resolve differences concerning the rights of a database
right-holders and the common right of the common population the right to use the data relating
to the general awareness.
 BIBLIOGRAPHY

• https://www.ipandlegalfilings.com/copyright-protection-for-databases-in-india/
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5073269
• https://www.dsir.gov.in/vol-15-no-3-july-september-1996-database-protection-
current-trends-and-issues
• http://docs.manupatra.in/newsline/articles/Upload/60933B81-59BC-47A8-BB58-
E4E39A18B76C.pdf
• https://www.lexology.com/library/detail.aspx?g=2c1a306c-f3b0-4bf9-a283-
28ac9c241dbe
• https://www.bitlaw.com/copyright/database.html