Online databases and intellectual property

Annapoorna Ogoti

Vaibhav Parikh

THE Internet is often the first place that you want to look for information when you need something really quickly.,,, the list of search engines is never ending. For each query that you key in, there are more results than you actually want to look at!

Search engines generate these results from the virtual database that is complied from the Internet. The entries in the database are actually works which have been created by many other people, i.e., the content of the database (in other words, the final compilation of the entries) is not something which is fully created by the particular search engine.

Moreover, search engines often create a link to the particular page of the relevant entry or display it completely. There are certain advanced search engines which instead of hunting around the vast Internet, seek to save energies by searching the databases compiled by other search engines.

There are several legal issues surrounding the intellectual property rights (particularly copyright) in the virtual database. Does it belong to the particular search engine? Is the virtual copyright infringing the copyright of the individual entries? Is it legal to search the database of another search engine? Given the popular use of databases and search engines, it would be necessary to examine these issues and any liability that may arise.

Copyright is granted to the creator of an original literary, artistic, musical or dramatic work. The copyright is given to the original and creative form or expression of the idea, although the underlying idea itself may not be original. To illustrate, the idea of painting a sunset is not original, but an actual painting of the sunset in a particular manner can be copyrighted.

When a particular work is copyrighted, the owner of the copyright gets certain exclusive rights, such as:

I The right to reproduce the work.

I The right to market and make revenue from the work.

I The right to communicate the work to the public.

Copyright in databases relate to two different aspects:

A The individual content or data in the database, and

A The copyright in the database as a whole.

The copyright in the individual entries or the data in the database belongs to the person who created the individual entry. The content which is purely factual would not usually merit copyright protection, whereas, individual entries which are ``original'' works would be copyrightable.

Copyright in the cumulative database poses a different problem with respect to copyrightable material. Pure factual compilations may not be copyrightable (for example _ a directory for specific purposes, is not really an original work) as the compilation is only a logical or an organised presentation of content which is already created by others.

However, if there is some original manner of arrangement, organisation and presentation of the data which has been collected, those original aspects may be protected by copyright.

Indian copyright law has also given recognition in the past to compilations where sufficient labour and skill have been involved in the selection and arranging of the raw material. While the Indian position on online databases is not yet tested judicially, use of online databases needs to take into account the copyright protection laws of other countries as well, given the boundary-less nature of the Internet.

The US copyright law specifically provides for registration of ``automated databases'' i.e., a body of facts, data or other information assembled into an organised format suitable for use in a computer and comprising one or more files. However, at the beginning of the previous decade, the American Supreme Court had clarified that a basic telephone directory did not have sufficient originality to merit copyright protection. This standard, known as the Feist standard (from the name of the case), still holds water while determining copyright issues.

On the other hand, the European Union has taken a stronger position with respect to protection of intellectual property rights in databases. The EU Database Directive passed in 1998 grants databases in which there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents. Makers of such databases are entitled to prevent the extraction and / or reutilisation of the whole or a substantial part of contents of the database. Repeated and systematic extractions and/or re-utilisations of insubstantial parts of database contents are also prohibited.

(To be continued)

The authors are with the Technology Law Division of Nishith Desai Associates, Mumbai.

(This article reflects the opinion of the authors alone and does not in any way mirror the opinion of their firm. This article should not be construed as legal advice.)
Source : The Business Line. March 31, 2000