Legal protection of databases

Databases play instrumental role in the development of global information infrastructure. They are developed with aims, inter alia, for faster services in all service sectors like recreation and tourism, healthcare, banking, insurance, real estate etc. Databases contain data on basic information collected, arranged, classified and stored targeting these sectors. Like others, the Government of Bangladesh has also been developing different kind of databases, e.g. database on voter registration, etc. Non-commercial nature of the government databases keep them away from copyright domain. Whereas, these abovementioned databases easily accessible online can be copied without the permission of the owner or developer, modified and re-used by others using sophisticated devices. Even though in some jurisdictions, such databases enjoy copyright protection once they meet some criteria, the status of these databases which can be termed as 'non-original databases' is somehow obscure in Bangladesh context as they lack the requisite originality or creativity to qualify for copyright protection, even though they require substantial amount of investment and intellectual input and effort.

A number of European countries and Mexico have introduced sui generis form of legal protection of such 'non-original' databases from copyright violation. The Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases defines 'database' in article 1(2) 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". Exactly same definition is incorporated in the World Intellectual Property Organization (WIPO)'s proposed Convention on Legal Protection of Database which is in the consultation process for years. Same is the position under the Copyright, Designs and Patents Act, 1988 of the United Kingdom.

Under article 3(1) of this EU Directive, 'databases which, by reason of the selection and arrangement of their contents only, constitute the author's own intellectual creation shall be protected as such by copyright.' Therefore, it is apparent that if any data is systematically or methodically arranged in a way that their contents constitute author's own intellectual creation that shall be protected by copyright. Pertinent to mention here that the very content of the database can be protected under genera copyright law and the same is confirmed by article 3(2) of the EU Directive. The copyright holder of such 'non-original' databases granted for systematic and methodical arrangement of contents, copyrighted or not, enjoys some common rights under this Directive. It is also known as the 'sweat of the brow' or 'industrious collection' doctrine which asserts that the copyright should be extended as a reward for hard work and investment for compilation work to develop the database.

In the USA, under the concept of 'compilation copyright', the compilation of works are similarly protected if the work is selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The Agreement on Trade-Related Aspects of Intellectual Property Rights has considered the word 'compilation' in article 10(2) and provides that compilation of data, which by reason of the selection and arrangement of their contents constitute intellectual creations, shall get copyright protection. Berne Convention for the Protection of Literary and Artistic Works, 1979 has used the word 'collections' and covers collections of literary or artistic works like encyclopedia and anthologies under copyright protection as they constitute intellectual creations by reason of the selection and arrangements of contents. Similar language is adopted in article 5 of the WIPO Copyright Treaty, 1996.

In Bangladesh, within the ambit of the Copyright Act, 2000, the literary, dramatic, musical or artistic work, cinematograph film or photograph, sound recording and computer program and broadcast reproduction right or performer's right, etc. can be protected. From the forms available in the website of the Copyright Office of Bangladesh, it is also certain that the copyright applications can be made for software, website, and mobile apps. Albeit, the status of these 'non-original' databases developed by systematic and methodical arrangement of contents are certainly uncertain. As a result, the status of USA's 'compilation copyright' or internationally recognised 'collection' are not clear in Bangladesh context also as it is apparent that the word 'compilation' as used twice in the Copyright Act, 2000 i.e. sections 72(1)(2) explanation and 79, and the word 'collection' as used in a number of instances in the Act do not intend to include these non-original databases.

Fortunately, section 54(2)(b) of the Information and Communication Technology Act, 2006 has defined the words 'computer database' as 'representation of information, knowledge, facts, concepts, or instructions by way of texts, image, audio or video prepared in a formalised manner through computer, computer system or computer network' and provides for punishment for downloading, copy or extraction of data from any computer, computer system or computer network without permission. Nevertheless, it is uncertain if the same provision can be applied in case of online databases.

In the absence of specific legal provision on database protection, data can be leaked and utilised in a wrongful manner. The entrepreneurs will face huge financial loss, which will discourage them to take similar ventures leading to slow progress towards government's aspired 'digital Bangladesh'. Even though no such thing has yet tested by the municipal courts of law, due to the wide use of computer and internet and the development of database industry, it may be anticipated that such issues will be an issue of contention in the near future. Therefore, the copyright authority can take initiative to clarify its stand regarding the protection of databases.

In some jurisdictions these databases can be protected through the unfair competition or misappropriation law. An aggrieved person in Bangladesh may, for the time being, find recourse in different provisions of the Penal Code, 1860. In order to prevent existing employees to copy and use the content of the database in future, the employment contract should be drafted carefully to prevent data theft. The public in general who can have the access to the database and they are also able to copy the content for possible future use. For them, the database entrepreneurs can think of introduction of stricter terms and condition even before the use of the content of the database, where a prospective user need to complete an online agreement containing the rights, obligations, duties and responsibilities of the website user in very clear and precise manner. 

The writer is a Senior Lecture at the Faculty of Law, University of Malaya, Malaysia.