PROTECTION OF DATABASES - POSITION IN USA AND

INDIA
……………………………………………………………………

An Assignment submitted to
Nims School of Law,
NIMS UNIVERSITY Rajasthan, JAIPUR
In partial fulfillment of LL.M – I Semester (IPR & Cyber Law Branch)) one year program
For the degree of

MASTER OF LAWS

SUBMITTED BY Submitted To

Mr. Altamash Pathan. Name of Faculty /designation

LLM (I Sem.) NIMS school of law , JAIPUR (RAJASTHAN)

Roll No/Enrollment No

NIMS SCHOOL OF LAW

NIMS UNIVERSITY RAJASTHAN, JAIPUR
2023-24
Databases are data collections that allow selection and arrangement of data by attributes that are
set up in the database. A database, or information system, contains two primary forms of digital
property: raw data, which is a source of knowledge or entertainment value; and tools, which are
programs that can be used to communicate, store, or manipulate raw data. A fully developed
database is an interrelated set of components capable of generating value from the collection,
processing, merger, storage, or dissemination of data.1 The variety of entities lumped under the
heading of ‘database’ comprise a complex array of potentially protectable intellectual property.
The principal categories include the data elements themselves; the effort used in locating them;
any originality involved in selecting and arranging the available elements; and the tools for
search and organization, together with all aspects of their creation.2 Traditionally, databases
have been classified as literary works and protected in many countries by copyright. Database
developers seeking to protect the data compiled by them face a unique challenge: facts cannot be
copyrighted but an arrangement of facts, such as a database, can be copyrighted, provided it
‘features an original selection or arrangement’ that ‘possesses at least some minimal degree of
creativity.’3 Database rights are essentially rights conferred in recognition of labour and
investment, rather than creativity or innovation. The strongest argument in favour of database
protection is the prevention of copying by a competitor as compiling a database is an expensive
and time-consuming proposition. The person who copies on the other hand, does not share the
original compiler’s development costs and can undercut the original compiler’s price.

THE SCOPE AND NATURE OF PROTECTION

International reference to the legal protection of databases is found in the Berne Convention
[Article 2(5)] which says that ‘a database is a collection of literary and artistic work such as
encyclopedias and anthologies which by reason of the selection and arrangement of their
contents, constitute intellectual creations’. TRIPS relaxes the Berne Convention standard by
allowing protection based solely on originality in the choice of works compiled or in the
arrangement and broadens the definition of compilation to include data and other material in any
form.6 The most recent WIPO Copyright Treaty of 1996, enforced in 2002, defines compilations
of data substantially similar to the TRIPS Agreement provisions.7 All three international
agreements talk about the presence of some intellectual creativity as a requirement for originality
in the author’s selection of the materials or in their arrangement to get copyright protection. At
the Diplomatic Conference of WIPO held in Geneva, Switzerland during December 1996, the
World Intellectual Property Organization (WIPO) considered, and ultimately deferred a proposal
for a Database Treaty.8 Since then, the matter has remained on the agenda of WIPO’s Standing
Committee on Copyright and Related Rights (SCCR), but there has been little movement due to
increasing opposition from developing countries. The draft WIPO Database Treaty was based on
proposals by Europe and the US proposals that were similar in nature and scope to the EU
Database Directive.9 While the database treaty was removed from the conference agenda and
taken off the table, WIPO has not abandoned its work on the subject.

THE ISSUE OF ORIGINALITY IN DATABASE PROTECTION UNDER COPYRIGHT

The most important issue in the protection of databases is the issue of originality. The question,
‘what is original?’ is hard enough to answer in everyday life, but becomes infinitely more
complex in the context of copyright litigation. Frequently, it is argued that works are not
sufficiently original to be copyrightable.10 This is an important argument since a work that is not
original cannot be protected, irrespective of the labour involved. Before a court determines
originality, it must first address the issue of whether originality is a ‘question of law’ or a
‘question of fact’. Inconsistency and lack of clarity are pervasive in this issue. Copyright
protection in cases of compilations or in databases however, extends only to ‘material
contributed by the author’. Therefore, the compiler does not acquire any rights in the preexisting
material. Until 1991, the vast majority of courts used one of two methods to evaluate originality
in compilations. Some courts rewarded the compiler’s ‘sweat of the brow’ by holding that a
compilation was original by virtue of the labour, time, money, and skill employed in its
production.11 Other courts believed that the ‘sweat of the brow’ doctrine violated the basic
tenets of copyright law, and found originality in compilations only if the compiler had exhibited
creativity, in the assembly and/or coordination of data.12 In 1991, the US Supreme Court finally
settled the debate in Rural Telephone Inc v Feist, ruling that effort alone can never be original in
the constitutional sense. Instead, the Court held that a compilation, like any other work, must
reflect a ‘minimal degree of creativity’ before it may be copyrightable.13 Feist delineated a
three-step approach for evaluating originality in compilations. First, there must be a collection of
‘pre-existing material, facts, or data.’ Second, the data must be selected, coordinated, or
arranged. And third, by virtue of such selection, coordination, or arrangement, an original work
of authorship must be created.
PROTECTION MEASURES

The American Action

Historically, the US Supreme Court held that ideas cannot be protected under the Copyright
Clause of the Constitution and that only the expression of an idea may be protected by the
government.14 Justice Hand described this concept as different levels of abstractions and pointed
out that there was a point in this series of abstractions where the expressions of ideas are no
longer protected, since otherwise a person could prevent the use of his ‘ideas,’ to which, apart
from their expression, his property is never extended.15 In addition to expression, another
requirement for copyright protection is that the item must have some degree of originality. Facts,
for instance, cannot be protected because the truth is unoriginal but a compilation of facts may be
protected as a whole if there is some originality involved. For most of this century, it was
assumed by businesses and the courts alike that a person may obtain a copyright on a
compilation of facts. However, the US Supreme Court struck down this notion in the early
nineties in Feist Publishing Inc v Rural Telephone Service Co16 and established that mere ‘sweat
of the brow’ did not endow collections of information with copyright protection instead
‘creativity in selection or arrangement’ was the determining element. The Feist case was fairly
stark because Rural Telephone’s ‘selection’ included all customers and their ‘arrangement’ was a
standard alphabetical listing. The defendant, Feist, needed to copy the data in order to put out a
unified telephone listing covering several companies; Rural Telephone refused to license the data
while the other companies cooperated.17 The Feist Court did leave open the possibility that
unoriginal effort alone might be eligible for legal protection other than copyright.18 A final
variation on the originality theme was presented by Kregos v Associated Press19, in which the
compilation related to statistics on starting pitchers in upcoming baseball games (primarily of
interest to gamblers). Comparing the plaintiff’s and defendant’s forms, the court observed that
six of the ten statistics presented on the two forms were identical. However, it concluded that
much of the overlap was influenced by the common purpose of the two forms. Based on this
rationale, the defendant’s selection of four different statistical categories was enough to avoid a
finding of substantial similarity.19

Copyright and Digital Millennium Copyright Act

The US Congress implemented the World Copyright Treaty’s measures regarding technical
protection in an Act entitled ‘Digital Millennium Copyright Act’ (DMCA). In the Act, the
Congress sought to combat copyright piracy in its earliest stages, even before the work was
copied.20 The Congress was concerned that the ease with which pirates could copy and
distribute a copyrightable work in digital form was overwhelming the capacity of conventional
copyright enforcement to find and enjoin unlawfully copied material. The anticircumvention and
rights management information (RMI) clauses in the Act have proven the most controversial,
particularly, as they apply to public access to digital works.21 Specifically, under the
implementation model of the DMCA adopted by the United States, traditional access
mechanisms such as fair use or fair dealing exceptions have been constrained. Rather than
facilitate prospects for diffusion and access to works, the copyright regime co-opted to
consolidate social gains associated with new technologies and to transform these gains into
economic opportunities for owners.22 The DMCA prohibits circumvention of technological
measures used to prevent unauthorized access to or use of a protected work.23 The DMCA also
prohibits trafficking in tools that might be used to disable such copy protection [§1201 (a) 2,
1201 (b) (1)]. These controversial provisions of the DMCA have been severely criticized as
overprotective and lacking in any limitations to safeguard legitimate uses of content protected by
technological means.24 The US Copyright Act, in a new Chapter 12 entitled ‘Copyright
protection and management systems,’ introduced legal rules that dealt with circumvention of
copyright-protected works.21 Subject to a number of exceptions, it is a copyright offence to
‘circumvent a technological measure that effectively controls access to a work protected under
[Title 17],’ or to manufacture, sell, or traffic in products whose significant purpose is
circumvention. This provision regulates software devices designed to unlock the copy protection
from a copy-protected computer program. Accordingly, these provisions also cover software
tools that are used unlawfully to decrypt an encrypted database.25 Upon preliminary
examination, it appears that regardless of the scope of copyright or other existing protection, the
proprietor of a database can employ technological measures to prevent unauthorized copying and
thus achieve fool-proof protection. If the measures work, there will be no unauthorized copying;
if they are circumvented, the act of circumvention itself will violate the Copyright Act. This
reasoning, however, contains several flaws. First, some database proprietors will not want to use
technological measures.26 Many of them are concerned mainly with massive appropriation and
remarketing of their data by competitors, while tolerating and even encouraging small-scale
copying by ordinary users. Second, the legal meaning of the phrase ‘a work protected under this
title’ is still an open question. If this phrase is interpreted as ‘a work falling generally within the
subject matter of copyright,’ then circumventing a measure designed to protect a database – a
compilation that is clearly within the subject matter of copyright – would be illegal, regardless of
how thin that copyright might prove to be. However, the phrase can also be interpreted as a work
protected under this title, but only to the extent of such protection. Under such an interpretation,
a court would first have to determine the extent of the traditional copyright protection in the
work in question. Circumventing technological measures would then be illegal only to the extent
that those measures protect copyrightable expression. In the case of Inquiry Management
Systems v Berkshire Information Systems27, US District Judge Naomi Buchwald was of the
opinion that Berkshire Information Systems (Berkshire) did not run afoul of the 1998 copyright
law by allegedly downloading up to 85 per cent of a proprietary advertising-tracking database
from the website of Inquiry Management Systems (IMS). IMS, a Canadian Corporation, was
engaged in the service of providing advertising tracking information to publishers, advertisers,
and others and operated a web-based service known as ‘e-Basket’, exclusively available to IMS
clients and protected by password.28 The e-Basket content was selected by IMS and arranged
into categories and subcategories, a process which involved substantial creativity, time and
effort. According to IMS, the e-Basket service contained copyrightable subject matter. Berkshire
introduced and operated a competing tracking service called Marketshareinfo.com. According to
IMS, Berkshire, or an agent thereof, intentionally and without authorization accessed IMS’s e-
Basket service, and gathered and copied content therefrom for use in Marketshareinfo.com.
Specifically, Berkshire’s unauthorized access spanned eight different web-pages of e-Basket
content (about 85 per cent), including that which would ordinarily be used by IMS clients.
Marketshareinfo.com was launched after Berkshire accessed e-Basket, and IMS alleged that it
incorporated original copyrightable elements of e-Basket, including the selection and
arrangement of informational category headings and IMS - compiled market data.27 To gain
access to e-Basket, IMS apparently obtained a user identification and password issued to a third
party, thereby knowingly inducing that third party to breach an agreement it had with IMS. The
plaintiff claimed that the defendant, by accessing IMS’s computer system through the
unauthorized use of a password issued to a party other than defendant, violated the DMCA’s bar
on circumventing a technological measure that effectively controlled access to protected work.29
To circumvent a technological measure as defined in the DMCA means to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove,
deactivate, or impair a technological measure, without the authority of the copyright owner; and
a technological measure effectively controls access to a work if the measure, in the ordinary
course of its operation, requires the application of information, or a process or a treatment, with
the authority of the copyright owner, to gain access to the work.30 One might associate these
activities with the breaking and entering (or hacking) into computer systems. Because Berkshire
may have somehow obtained a legitimate password to the website, the judge said, IMS’s
argument that the bulk downloading circumvented a security system was a stretch.31 ‘Whatever
the impropriety of defendant’s conduct, the DMCA and the anti-circumvention provision at issue
do not target this sort of activity,’ according to Judge Buchwald. Post the Feist decision, many
collections of facts (e.g., databases) are not protected by copyright - an element of the great
idea/expression dichotomy. The great worry about the DMCA with regard to databases is that the
unscrupulous will use the DMCA to obtain copyright-like protection for databases that are not
protected by copyright.

THE EUROPEAN REACTION

United Kingdom

Feist caused ripples of alarm in Europe. A Feist-type approach by European courts was quite
conceivable and would have posed a substantial threat to the database industries in the European
Union specifically.32 Before the Database Directive came out in EU, the standard for the
protection of databases in the Anglo-Irish systems had been very different because of the
different originality requirements. The United Kingdom has a very low requirement of
originality. The English statutory law long accorded copyright protection to databases as
‘collections or compilations of data’. The requirement of originality in this context was that some
degree of ‘labour, skill and judgement’ had been applied in the ‘selection and arrangement’ of
the contents of the work as said in the judgement of Peterson J in University of London Press v
University Tutorial Press33 . It allows copyright in a database (as distinct from its contents), but
only on the basis of authorship involving personal intellectual creativity. Where this copyright
exists, it is an author’s right and accordingly will last during his/her life plus 70 years.34 The
Database Directive35 extends copyright protection to databases as collections under Article 2(5)
of the Berne Convention and without prejudice to the protection by copyright of collections of
works or materials arranged, stored or accessed by non-electronic means, which accordingly
remain protected to the extent provided for by the Berne Convention.36 Article 1(2) of the
Database Directive defines a database 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.’37 A typical database system is comprised of three components. The first is a
computer program which operates the database, the second component is the actual information
stored within the database. The Directive extends protection to such information if it meets the
requirements of ‘originality in selection or arrangement’ (Recital 14) and the third part is an
amalgam of electronic material that allows the user to interact with the database to store, retrieve,
and manipulate the information. This broad category includes search criteria implemented in
command strings or macro language procedures, indexing methods, thesaurus, and presentation
methods. The Directive specifically extends protection to such methods of presentation,
manipulation and data input (Recital 17). In a radical departure from the copyright paradigm, the
European Commission took a sui generis approach to database protection in Article 10(2) which
confers upon the database creator the right to ‘prevent the unauthorized extraction or
reutilization’, from that database, of its contents in whole or substantial part, for commercial
purposes. The right is subject to certain exceptions that resemble, but are narrower than the fair
use exceptions under copyright law. The right owner in this case has to be from Europe, and in
case of an individual, he/she must be a national or resident of one of the member states of the
EU.38 As originality requirements pervade virtually every system of copyright known, the
problem is further compounded in the context of compilations, because originality must be
manifest in the selection or arrangement of the included materials.35 The Commission admits
that the arrangement of database materials is performed in large part by the system.39 This
standard is very similar to the standard that is applied in the United States after Feist with one
additional limitation: under the Database Directive, there must be intellectual creation by a
human author for copyright protection to exist, raising questions about the extent to which a
database can be protected under copyright law if the selection and arrangement of data is
accomplished by a computer program with minimal human contribution. The new right gives
protection from the moment the database is completed, and expires 15 years later [Article 10(1)].
A fresh 15-year term can be obtained if the contents are ‘substantially changed’.40 Depending on
what level of investment is ultimately required to be substantial, the provision for a renewable
sui generis right could last in perpetuity if the contents are regularly updated.41 However, the sui
generis right is not absolute and there are restrictions to this right like, a maker of a database that
is made available to the public cannot prevent a lawful user of the database from extracting or re-
utilizing insubstantial parts of it. In addition, the sui generis right is subject to certain exceptions
for non-commercial uses related to teaching, scientific research, and public security. These
exceptions are narrower than the similar fair use exceptions under copyright law. For example,
the sui generis right has no exceptions for criticism, news reporting, satire, or library use. The
primary objective of the intellectual property regime is to promote creativity and innovation and
also to maintain a vigorous public domain. But this new right may block dissemination of
information and obstruct its flow into the public domain.42 The Final European Commission
Directive does not condition sui generis protection on any showing of a creative achievement or
of a novel contribution to the prior art, the classical bases for justifying legal derogation from
free competition. Rather, it merely requires the database maker to prove that ‘there has been
qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or
presentation of the contents’. This may create hurdles for diverse communities like
academicians, researchers, scientists, and students due to the commercial nature of facts. Further,
there is also potential danger of the new database right ending in perpetuity. Because the EC
Directive itself provides no further guidelines for evaluating the requisite level of investment in
either case, this threshold will remain uncertain, pending decisions by European courts applying
the still to be drafted domestic database laws. Further, on closer inspection, the investor’s scope
of protection under the hybrid extraction right appears paradoxically to exceed even that afforded
to authors of traditional literary and artistic works under the classical copyright paradigm of the
Berne Convention. For instance, it ignores the important distinction that copyright law makes
between ideas (a legal metaphor for the non-copyrightable components of protected works,
including among other things, the facts or data they contain) and the author’s expression. The
TRIPS Agreement makes this distinction universally applicable to all copyrightable works,
including such borderline works as computer programs and factual compilations.43 Yet, the
database law contains no such distinction. This means that, in the universe of data generators,
there is no evolving public domain substratum from which either research workers or second
comers are progressively entitled to withdraw previously generated data without seeking licences
that may or may not be granted.44 The absence of any equivalent to the idea-expression doctrine
under the new sui generis regime means that investors, in effect, obtain proprietary rights in data
as such, a type of ownership that the copyright paradigm expressly precludes. Proponents of the
sui generis right downplay this prospect by insisting that third parties remain free to generate
their own databases.45 In British Horseracing Board v William Hill46, the European Court of
Justice adopted a parallel ruling, which affected the very existence of the right, besides its
infringement. The British Housing Board maintained a large, costly database of horseracing
across Britain as a part of its management of the industry, in which the details of entries and
results were constantly updated. This information was sold to two companies who were entitled
to distribute it to bookmakers and others. The defendant, UK’s biggest betting firm, obtained the
information this way for publishing each day’s racing programs. However, when it set up an
Internet betting service partly based on this source of information, the BHB relied on its database
right to demand a separate charge. The ECJ held that quality was to be judged by referring back
to the elements of investment which gave rise to the existence of the sui generis right in the first
place. The ‘elements of investment’ superseded the value of the extracted material itself and was
the measure to be assessed in these types of infringement cases. The Court held that as to the
provision which related to the repeated extractions of insubstantial content, this would constitute
infringement only if it allowed the defendant to ‘reconstitute and make available to the public the
whole or a substantial part of the contents of the BHB database and thereby seriously prejudice
the investment made by BHB in the creation of the database.’46 The Court’s ruling in this case
substantially truncated the scope of the sui generis database right. Identifying the object of the
right as the promotion and protection of investment in data storage and processing systems, it
drew a fundamental distinction between investment in creating the information in the first place
and investment in storing and processing it in the database. To claim a database right it was thus
necessary to show substantial investment in the latter which is the database itself in both
qualitative and quantitative terms. So, where the collection and storage investment is substantial,
the database right will still accrue. For there to be infringement, there has to be a substantial
extraction and utilization, including the repeated takings that are in themselves insubstantial.34

France and Canada

In Societe Reed Expositions France v Societe Tigest Sarl, 47 a French case, the court held that
catalogues and magazines on the organization of trade fairs and exhibitions came under the scope
of the Protection of Database Act 1998 (an Act passed to implement the European Union
Database Directive) as the claimant expended sufficient financial, material and human
investment in the creation of the same.48 In Canada, each component constituting a database
(interface or ‘look and feel’, content, software) may enjoy copyright protection insofar as it
meets the traditional test of originality. Raw data or an element in the public domain is not
protected under Canadian law. It is however, more debatable that newspaper classified ads be
protected under the Copyright Act. The Canadian copyright system offers protection to
databases, as a compilation, meaning a work resulting from selection or arrangement (Section 2
of the Copyright Act). The Canadian Copyright law in this regard follows the position adopted
by the US Supreme Court in Feist. In Tele-Direct (Publications) v American Business
Information49, the appellant, Tele-Direct, the publisher of the yellow pages directory claimed
copyright in respect of its organization of subscriber information. At issue was whether copyright
subsisted in the compilation of information contained in the yellow pages and in particular, in a
sub-compilation referred to as ‘in-column listings’. The Court of Appeal ruled in favour of the
‘creativity’ doctrine over that of the ‘sweat of the brow’ doctrine. It held that a selection or
arrangement of data only resulted in a protected compilation if the end result qualified as an
original intellectual creation. In this case, the appellant’s in-column listings were held to be
devoid of creativity and thus not eligible to copyright protection. In addition, the Court of Appeal
reiterated the principle that no copyright could be claimed by the appellant in the data, and
therefore the issue of infringement was not even considered. Because the Supreme Court of
Canada dismissed an application to leave an appeal, the Tele-Direct judgment is still the
applicable authority with respect to database protection. In Setym International v Belout50, the
plaintiff, a company specializing in management training, instituted an action against its
employee, Belout, on the ground that the latter used and reproduced the plaintiff’s client
directory. The court decided that Belout was liable for damages on the grounds that the use of the
plaintiff’s lists and directory was an infringing use pursuant to Canada’s Copyright Act. This
decision extended the scope of protection of factual databases in Canada and contradicted the
Tele-Direct case.51

THE SCENARIO IN AUSTRALIA

Australia’s Section 10 of the Copyright Act defines literary work to include ‘a table, or
compilation, expressed in words, figures or symbols (whether or not in a visible form)’. Latter
clause in parentheses intended to make clear that computerized databanks could be compilations.
A database right, like protection for ‘sweat’ databases under Australian copyright law, is
conferred primarily for investment undertaken in manufacturing the database. This means that
when there has been a sufficient exertion of time, energy and effort in creating a database
comprised of non-original material, this material forming part of the database, is necessarily
protected together with the database itself. In the recent Australian Federal Court case of Telstra
Corp v Desktop Marketing Systems52 , Judge Finkelstein ruled on a factual situation very
similar to Feist, except the Telstra case involved electronic versions of what were paper-based
telephone directories in Feist. In Telstra, Desktop Marketing Systems reused without permission
significant amounts of information contained in Telstra’s white pages and yellow pages
directories. Judge Finkelstein held that Telstra was entitled to assert copyright in both its white
and yellow page directories.53 The selection and arrangement of the contents showed sufficient
originality to attract copyright protection.54 The year 2010 was a very controversial year for the
Australian copyright law with the Federal Court of Australia delivering another landmark
decision in Telstra Corporation Limited v Phone Directories Company Pty Ltd. 55 In this case,
the Court held that copyright does not subsist in yellow pages and white pages telephone
directories. Justice Gordon said that copyright could not subsist because the author of each of the
directories could not be identified as they were created through a computer automated system
which did not allow any independent intellectual contributions from human contributors. This
decision is a significant departure from the Full Federal Court’s 2002 decision in Desktop
Marketing where it held that copyright subsisted in Telstra’s directories and that the copyright
had been infringed. In 2007, Telstra and its advertising arm, Sensis, commenced proceedings
against a competitor, Phone Directories Company. They alleged, among other things, that
copyright in each of the directories had been infringed. The applicants adduced a mammoth 91
affidavits from witnesses in support of their claim that copyright subsisted in the directories.
While the applicants submitted that they were not required to identify a particular ‘author’ in
order to prove subsistence, they added that if required then these 91 individuals were the authors.
Evidence on the contrary revealed that the production of a white pages or a yellow pages
directory was mostly automated. The Court held that none of the 91 people identified by the
applicants were the authors of the directories. The evidence did not cover all of the directories
but only related to a sample. Further, many of the individuals who could be considered as joint
authors had a limited role in contributing to the directories. This case indicated strongly the
importance of authorship and confirmed the centrality of authorship in determining whether
copyright subsists in a work. Indeed, the Act fixes copyright on the author/s. Therefore if
author/s cannot be identified, copyright cannot subsist. As far as originality is concerned, it must
be an independent intellectual effort and all literary work must be original for copyright to
subsist in them. Pursuant to Telstra Corp v Desktop Marketing Systems, subsistence of copyright
in Australia only required a low level of originality. In this case, the focus was whether there had
been substantial labour and expense expended in the creation of the work.56 As, the notion of
originality is closely tied to authorship, it is obvious that works originate with an author and that
the creation of the work involves some independent intellectual effort or sufficient effort of a
literary nature. What this effort is shall have to be determined on a case-to-case basis.

THE INDIAN STAND

There is no express legislation in India dealing with database protection. Although the Personal
Data Protection Bill was introduced in Parliament in 2006, it is yet to see the light of the day.
The bill seems to be based on the general framework of the European Union Data Privacy
Directive, 1996. It follows a comprehensive model with the bill aiming to govern the collection,
processing and distribution of personal data. It is important to note that the applicability of the
bill is limited to ‘personal data’ as defined in Clause 2 of the bill.57 Data protection is aimed at
protecting the privacy of information pertaining to individuals, while database protection has an
entirely different function, namely, protect creativity and investment in the compilation,
verification and presentation of databases. The Copyright Act, 1957 protects works under
literary, dramatic, musical, artistic and cinematographic categories. The term ‘literary work’
includes computer databases as well. Therefore, copying a computer database, or copying and
distributing a database amounts to infringement of copyright for which civil and criminal
remedies are available. The Information Technology Act, 2000 was recently amended to meet
challenges in cyber crime. It has introduced two important provisions that have a strong bearing
on the legal regime for data protection. These are Sections 43A58 and 72A.59 But the provisions
pertaining to data security and confidentiality are still inadequate. The proposed amendments
widen the liability for breach of data protection and negligence in handling sensitive personal
information.60 There are very few cases that can be found on the works of compilation or
databases. One such is the case of Burlington Home Shopping Pvt Ltd v Rajnish Chibber61 ,
where the plaintiff published mail order catalogues dealing with several consumer items which
were posted to a select list of the plaintiff’s clients. The said database was an expensive one in a
gradual process of compilation. The defendant managed to get a copy of the database and started
making use of the same for the purpose of establishing relationship with the plaintiff’s
customers. The question which arose was whether a database consisting of compilation of
mailing addresses of customers was a subject matter of copyright. The court decided that
compilation of addresses involved devoting time, money, labour and skill. Even though the
sources were commonly situated, the compilation amounted to a ‘literary work’ wherein the
author had a copyright.62 This was reiterated in the case of The Himalaya Drug Company v
Sumit.63 The Indian courts seem to uphold the ‘sweat of the brow’ theory or the skill, labour and
judgment test in deciding copyright protection against infringement. In other cases, like
McMillan v Suresh Chunder Deb, 64 Govindan v Gopalakrishna, 65 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
Court referred to the US Supreme Court’s Feist decision 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.66

CONCLUSION

The European Union Directive contains a reciprocity clause which may vitiate the impact of
Feist. The right to prevent unauthorized extraction will only protect databases of foreign origin if
the country of origin provides comparable protection to databases of European origin.
International access to database technology enables instruments such as the reciprocity clause to
exert pressure on legal systems of other countries. Proponents of database protection face lack of
empirical data supporting their arguments. An analysis by Maurer shows that a onetime spike in
the number of available European databases followed adoption of the EU Database Directive.67
The United States, on the other hand, has enjoyed steady growth in the number of available
databases, without offering protection.68 Arguments against sui generis database protection
seem to have the upper hand. Computers and the Internet have revolutionized how the world
works, and the world continues to benefit from these new technologies. Part of this growth has
increased the ability to access large amounts of data.69 Establishing property rights over
information products by extending the concept of property will not inevitably create an
information monopoly. Rather, legislatures can use property rights to balance private and public
interests. The form of protection has two components: the nature of what is to be protected and
the conduct that is to be prohibited. The following pointers are suggested to pave a new road for
protection of databases: (i) the purpose of a new database law should be to support commerce by
offering a lead time to database producers for investing time, energy and capital; (ii) a new
database law should offer sui generis rights to non-original databases and copyright to original
databases; (iii) a new database law should offer a mandatory system of registration of database
rights under a governmental authority which will oversee the commercial exploitation of
database rights; (iv) the governmental authority under a new database law should ensure that the
quality and quantity of the public domain shall not be affected; (v) the fair use exception should
be the same as is available under copyright law (Section 52 of Indian Copyright Act); (vi) a new
database law should offer protection only to those databases which are created solely for
commercial purposes; (vii) private databases, non electronic databases, government databases
and scientific and educational databases should be excluded; (viii) there should be compulsory
licensing for sole-source databases and lastly; (ix) the new legislation should offer protection for
a short and limited period to gain a commercial head-start over competitors.70 The importance
of information and its protection so as to encourage more people to contribute the information
reservoir cannot be overemphasized.

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