Recent commercialization and thefts of databases have stoked a long overdrawn debate on sui generis database law. The current copyright regime requires no changes but broadening the scope for interpretation and inclusion of databases in a sui generis manner.
Recent developments have unleashed a lot of ambiguity in the informatics-copyright sector. The European Union’s directive granting sui generis rights to databases has attracted significant attention of stakeholders from different ends of the spectrum. The need of databases and their utility have increased manifold and so has the need for their protection, in the last two decades. Economies around the world are granting protection to original databases which is a fair step, in order to capitalize on the database industry. Lawmakers and academicians, face a catch 22 situation of striking a perfect balance between access and protection.
India’s outsourcing sector has been booming in the last fifteen years and has given birth to a new-age electronic database industry. Recent commercialization and thefts of databases have stoked a long overdrawn debate on sui generis database law. The commonly held perception in favour of a new legislation granting database copyrights stands on the premise of the doctrine of “sweat of brow”, lowering the copyrightabilty standards and protection of unoriginal databases (either in form of copyright or any other specific right).
CURRENT DATABASE REGIME
“Database” was included in the definition of “literary work” under section 2 (o) by the Copyright Amendment Act of 1999. The definition of literary work now includes computer programmes, tables and compilations including computer database. Indian courts follow the “modicum of creativity” rule with respect to originality threshold for attracting copyright protection. The rule rewards employment of skill and judgment with a flavour of creativity and discards protection for merely investing capital, time and labour (sweat of brow or industrious collection doctrine). The Supreme Court adopted this Indian-Canadian model for testing originality or creativity element in a product. The EBC v D.B. Modak [(2008) 1 SCC 1] judgement held; mere arrangement, selection and co-ordination of facts in databases cannot be copyrighted. Currently, Section 43 & 65 of the Information and Technology Act provides protection to unoriginal databases and inflicts criminal penalty.
CRITICAL INTRICACIES OF THE NEW REGIME
Ever since the European Union came out with its database directive, there have been academic deliberations on copyrights subsisting in databases. WIPO’s standing committee report analyzed various impacts of database protection in the Indian context and suggested various reasons for a new regime of database copyright protection. The misappropriation and free-rider problem in the database industry demands adequate protection. Absence of appropriate protection may discourage investment by database manufacturers. However, there remain some loopholes in sui generis regime which may lead to market failures at multiple levels.
Scope and duration of protection
Firstly, the conflicting models of originality threshold provide different levels of protection. According to the doctrine of sweat of brow, the protection maybe extended to the entire compilation including facts whereas modicum of creativity doctrine grants protection to selection and arrangements. Incorporating either of them in the new database regime has its own pros and cons. The nascent stage of Indian database industry would initially require a little boost which may be achieved by lowering standards resulting contradictions with basic principles of copyright. Accepting the current copyright standards (D.B. Modak’s standard) would discourage investment in the industry due to non-availability of protection to unoriginal databases.
Secondly, a database comprises factual entries arranged in a sequential or systematic manner for example subscribers’ list maintained by Telecom operators. Sequencing, arrangement, selective co-ordination and patterns are the protectable elements in a database as “expressions” saving the factual information in entries (which otherwise are not copyrightable). A copyright protects sequential arrangements in a compilation which are altered and modified on regular basis. Exclusivity rights in databases usually subsist for a period of 15 years (as incorporated by various countries in their copyright regimes). Contradictorily any alteration, addition or modification in a compilation would start afresh the term of copyright. The informatics-industry demands frequent updating and modifications, extending the term of protection on subsequent entries. Therefore, any subsequent alteration may lead to extension of copyright term from that day. Apart from lengthening copyrights, this regime would hamper the open access of databases.
The future of database industry hinges on manufacturers providing quick access, extraction and retrieval of data. So, ever-extending duration of copyrights may lead to monopolies and cartelization of databases owners within informatics industry. Resultantly, owners would exploit the market by establishing hegemony; information access would be left at the hands of few.
THE WAY FORWARD
Technological advancements and breakthroughs are frequent occurrences in the market Arguably, with every scientific and technological breakthrough, a new legislation would be superfluous. The Indian copyright regime does not require a new statute for new-age database industry. The current regime is broad enough to incorporate it requirements and providing copyright protection.
The fundamental dissimilarities between compilations and other literary, artistic or dramatic works require sui generis interpretation of the originality threshold adopted by the copyright law. Employment of skill, judgement and intellectual creation differs on a case to case basis. A sketch or a song is purely a by-product of a person’s intellect and creativity and doesn’t rely on factuality, on the contrary photograph pre-requisites a physical embodiment in order to be captured. Similarly, a database is a compilation of facts. The presentation of facts in systematic, co-ordinated manner enabling quick extraction from a heap of data also requires creativity. For instance a database may depict its creativity in sequencing data not in a generic alphabetical order but in a non-conventional format which helps the user in remembering the important details. Therefore, the application originality threshold should be uniform only within the same subject matter not between different subject matters.
The term of database protection cannot renew and extend to an infinite period. The renewability/extension clause may be either investment or time based. The EU directive depicts the investment model “substantial investment” in the form of deletion, addition which results in database being considered as substantially new database. Similarly, the extension may be granted on time-based model requiring a reasonable period which caps the renewability/extension right of the owner. The cap period may differ depending upon the industry (mobile phone subscribers as opposed to car owners). It may be 6 to 8 months as data gathering for a significant modification may require time Significant can be in the form of quality or quantity and investment includes financial, human or technological.
Another approach for tackling the database issue may be a hybrid-misappropriation law (quasi-property right) combination of US law and a new model. Since, most unoriginal databases may not meet the copyrightability standards, the courts may grant the enforcement rights and no rights of commercial exploitation. This approach solves the free-rider/misappropriation problem by restraining the use of databases, would not discourage investment by protecting the products from unfair use by competitors and providing exclusivity to the owners. Similarly, no commercial exploitation right is commensurate with the low originality threshold because of high reliability on facts that reduces the scope of employing creativity.
Therefore, the current copyright regime requires no changes but broadening the scope for interpretation and inclusion of databases in a sui generis manner.
Shashwat tiwari is a fourth year student at Institute Of Law, Nirma University, Ahmedabad. He is the editorial head of Intellectual Property division of Metacept.com. He also served as the editor at the Network for International law students and a columnist at the Libertatem magazine.