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By Mags McGinley, University of Edinburgh
Databases are an integral part of digital curation whether as part of the toolkit for curating data or as entities to be curated themselves. Ownership of the intellectual property in a database and the associated rights this provides will have a significant effect on what curation acts can be carried out in relation to a database. A clear understanding of what these rights are, when they arise and how they operate will be beneficial for practitioners. The benefits will be gained not only in terms of avoiding infringement of third party rights but in being able to recognise the rights they themselves hold, thereby maximising the potential for access, exploitation and dissemination.
In any given database, copyright, the database right, both or neither may subsist. Confused..? Read on.
Copyright is the intellectual property right that protects the expression of ideas or information. There is often confusion around the subsistence of copyright in a database. A database may attract copyright protection but only in certain limited circumstances. Firstly, the structure of a database may be protected if, by reason of the selection or arrangement of the contents, it constitutes the author's own intellectual creation. Secondly, depending on what is contained in the database, copyright might also exist independently in the contents of the database (for example, a database of images where each of the images would attract its own copyright protection as an artistic work).
Copyright protection arises automatically as soon as the created object has some material form. A person does not need to register or publish the work. The first owner of copyright is 'the author' which in the case of a database is the person who creates the database. In summary, the copyright owner has the exclusive right to:
In Europe, the term of copyright in a database is 70 years. The term of copyright in the individual works contained in the database will depend on the category of works in question.
In addition to limited copyright protection, a database may also qualify for a relatively new right called the Database Right. Introduced in 1996, this is a sui generis form of intellectual property protection developed exclusively to protect databases. The database right subsists in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database (even if the contents and/or structure of the database are not original and therefore do not attract copyright). Investment is construed widely and covers financial, human and technical resources. Like copyright, the database right arises automatically.
The legislation provides that the first owner of the database right is the 'maker' of a database. The maker is the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in the same. The database right enables the owner to prevent others from extracting and/or re-utilising all or a substantial part of the contents of their database. What constitutes a 'substantial part' is still unclear but it is known that it may be tested both quantitatively and qualitatively. It should also be noted that the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to a substantial part.
The right subsists for 15 years from the creation of the database, but if the database is published in this time, then the term is 15 years from publication. Although this term is much shorter than its copyright equivalent there is some uncertainty surrounding it. The legislation that implemented the database right states that there is renewal of the term of the right each time there is a "substantial change" to the contents of the database. Many databases are dynamic. It has been suggested that if a database is continually changed and updated the right could last indefinitely.
A key concern in relation to the database right has been a perception that it seems close to the grant of an intellectual property right in data and information per se, allowing only a limited exception for extraction (but not re-utilisation) of data for illustration for teaching or research and not for any commercial purpose. The result is that those involved in curation activity may suffer restrictions on access to, and ability to re-use the raw data necessary for scientific progress.
"Numerous scientists have pointed out the irony that, at the historical moment when we have the technologies to permit worldwide availability and distributed processing of scientific data, legal restrictions on transfer make it harder to connect the dots." (http://sciencecommons.org/about/towards.html)
There are many unresolved or controversial issues in relation to the IPR in databases. These include:
The DCC is currently investigating a number of these issues (see ADDITIONAL RESOURCES).
Date Published: 26 October 2007 | Last Modified: 29 October 2007 | Submit Feedback | web-editor@dcc.ac.uk
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