Intellectual property rights in databases
A database can take many shapes and forms but put simply, it is a collection of information that is organized so that it can be easily accessed, managed and updated. Examples of databases include content management systems, websites and document management systems.
Databases can be valuable assets which are often overlooked by businesses.
Multiple forms of protection are potentially available for a database, the two most common are copyright and database right. The former primarily protects the look and structure of the database, whereas database right is more focussed on the data or information which sits within the actual database.
The information or data itself held within the database may also be protected by the law of confidence or be under contractual obligations of confidentiality but we do not focus on this in this note.
Copyright will either protect:
- the database as a “compilation”, if the compilation is original (“ordinary copyright”); or
- the structure of the database if the selection and arrangement of its contents are original (“database copyright”).
For the latter to apply the database must fall within the relevant definition of a “database”, namely a collection of independent works, data or other material arranged in a systematic or methodical way and is individually accessible by electronic or other means.
Whichever form of copyright applies (i.e. whether ordinary copyright or database copyright) the first owner of such copyright will be the person who creates it i.e. the person who authors the database. Where that author is an employee and the database has been created in the course of their employment, their employer will be the first owner. This is in contrast to where the author is an independent contractor commissioned by a business to create the database since, in the absence of any express agreement to the contrary, the contractor (and not the business) will own the copyright in the database.
Copyright in a database lasts for 70 years from the end of the calendar year in which the author of the database dies.
Database right is separate and distinct from any copyright which may subsist in the database.
Database right shall apply if there is substantial investment in obtaining, verifying or presenting its contents. The person who takes the initiative in doing this (or the risk of doing so) shall be the first owner of any database right in the database.
Database right lasts for 15 years from the end of the calendar year in which the making of the database was completed (or, if the database is made available to the public before the end of this period, 15 years from the end of the calendar year in which the database was first made available to the public).
However, bearing in mind the criteria for database right to subsist, it is possible to continually refresh your database right where the database is continually updated and such updates represent a substantial new investment each time.