Protection of Databases: Sui Generis Abortion Copyright Conception

By

Apar Gupta*

 1. Introduction

It would be an atrocious doctrine to hold that dispatches, the result of the diligence and expenditure of one man, could with impunity be pilfered and published by another . . . . The mere fact that a certain class of information is open to all that seek it, is no answer to a claim to a right of property in such information made by a person who, at his own expense and by his own labor, has collected it.[1]

 India has been a key beneficiary of electronic commerce.[2] This has brought in a wave of digitization of offices and workplaces with the concomitant effects of decrease of bundles of papers and increase of bytes of databases. A database generally refers to an aggregate of information systematically arranged and fixed, whether on paper or in any other form such as electronic media, i.e. stored in computer system.[3] While databases, like telephone directories, are “compiled out of necessity in the ordinary course of business, the originators of many electronic databases take on the risks and tasks of gathering raw data” and organizing it through an efficient search engine for easy access to data.[4] These processes involve huge capital outlays and are undertaken solely on the prospect of generating revenue on the sale of the information or database services. In order to recover investment and to avoid free-rider or parasitic competition, the database manufacturer must be able to protect his compilation efforts.[5]

 As industries in the global market progressively come to rely on electronic compilations of data, calls for new, sui generis forms of legal protection for databases have grown apace.[6] Yet, as the quotation above illustrates, the issue of data protection is not new, nor is the world without precedent in determining how the issue of data protection ought to be resolved.  

2. India’s position on a sui generis international treaty

 The issue of database protection has been on the agenda of the WIPO Standing Committee on Copyright. Studies have been commissioned on the economic implications of database laws, especially for developing countries. Note that at the Third Session of the Standing Committee, a number of countries took the view that the need for additional protection had not yet been demonstrated. These countries included India. It was reported that the Indian delegation argued that copyright protection was sufficient and working well and that there were concerns about the possible effects of database rights on the development of science, technology, research and education.[7]

 3. Database protection under the Information Technology Act, 2000

 In 1999 prompted by United Nations Commission on International Trade Law’s Model Law on Electronic Commerce[8] (MLEC) and notable developments in Asian countries such as Singapore and Malaysia, India commenced with providing a legal framework for internet activity.[9] The Union Cabinet approved the bill on May 13, 2000 and it was finally passed by both the houses of Parliament by May 17, 2000. The Act received presidential assent on June 9, 2000 as the Information Technology Act, 2000.[10] India aims to regulate all digital activity through the Information Technology Act, 2000. However the database protections provided it to under the act is fairly limited.[11]

 Specifically Section 43 of the Indian Information Technology Act, 2000 imposes liability “to pay damages by way of compensation not exceeding one crore rupees to the person so affected”[12] if “any person without permission downloads, copies, or extracts any data, computer database or information from such computer, computer system or computer network.”[13] The section defines “database” as the representation of information, knowledge, facts, concepts, or instructions prepared in a formalized manner. Though this section can be applied for electronic databases, its effectiveness is still to be tested for granting protection to databases or data on the Internet.

 4. Database protection under the Copyright Act, 1957

Most municipal legal systems have steadily moved in the direction of providing protection to computer software and databases under copyright law. In principle, it is the skill, labour and judgement of the author that is protected irrespective of the form in which the product appears e.g. whether one types a book on an old-fashioned typewriter or transforms it in a digitized form or in handwritten form. Any reproduction of the work including translations is considered a reproduction of the original.

 Protection for databases is in India has been tested in the traditional intellectual property regime of copyright protection. This is contained under the Indian Copyright Act, 1957, post 1994 amendments. The Indian Copyright Act, 1957 was amended in 1994 to extend more effective protection to owners of copyright by making provision for the special nature of computer programmes as literary works and for the protection of computer generated works. The amendments included in the meaning of ‘Literary Work’ the works such as computer programmes, tables and compilations including computer databases. Under Section 2(o) of the Copyright Act, “computer database” is included in the definition of “literary work”.

 Database manufacturers are relying on copyright laws as databases are protected as compilations under literary works. In India, a member of the Berne Convention and TRIPS Agreement, the requirement of originality in selection or arrangement of the contents of the database is required to attract copyright protection.[14] Furthermore, the Copyright Act provides that copyright shall subsist in original works of authorship. To obtain copyright protection for a compilation, it must exhibit some creativity or originality in the selection or arrangement of the contents of the compilation. There has been no clear pronouncement by the Indian courts on the concept of originality and the term is not defined anywhere in the Indian Copyright Act.

The courts seem to uphold the “sweat of the brow” theory or the skill, labour and judgment test in deciding copyright protection against infringement. In many cases, like McMillan v. Suresh Chunder Deb,[15] Govindan v. Gopalakrishna,[16] and others,[17] the courts 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. The courts based their decisions on the point that no person was entitled to appropriate for oneself the fruits of another's skill, labour or judgment and even a small amount of creativity in a compilation was protected. These cases clearly show that the “sweat of the brow” doctrine is being followed by Indian courts in deciding copyright protection to databases.

 Under Section 17(1)(c) 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. The sections applicability to database protection was recently examined in Diljeet Titus, Advocate & Ors v. Alfred A. Adebare & Ors[18] where the Delhi High Court held that the copyright in a database prepared by an advocate working under and in the office of another advocate by using the latter’s resources, expertise and investment, would vest in the employer advocate.

 In a recent case, the Delhi High Court said 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.[19] Rejecting protection for “Head notes” prepared by the plaintiff publishers, the Court observed that protection of copyright must inhere in a creative, original selection of facts and not in the creative means used to discover the facts. The Court referred to the US Supreme Court's Feist decision[20] and said that there should be a modicum of creativity in the selection, arrangement or co-ordination of the contents of a database to attract copyright protection.[21]

 5. Conclusion

 Without additional protection for non-creative databases, the Indian economy will suffer. Only clearly defined copyright and database rights will cultivate a legal environment from which the investment necessary to construct and disseminate a variety of on-line and off-line database services so vital to the development of electronic commerce may flow.[22] The Information Age requires new legal developments.   India indeed needs a new, specific legislation for legal protection of databases. It is pertinent to bear in mind that, “Information is the raw material for the new economic era which we entered upon some few short years ago. . . . In the Agrarian Age, the law developed to facilitate the ownership and use of the most important asset of the time: land. In the Industrial Age, the law developed to facilitate the ownership and use of the chattel. So, in the Information Age, we should expect the law to develop to address the use of information, and in doing so to consider whether it can indeed be owned at all.”.[23]

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[Ed: Views expressed herein are the vies of the author only]