Notes

Which data are we considering?

• Non personal data
• Machine-Generated data
• Navigation Data
• Search Engine Data
• Stock Market Data
• Energy Consumption Data
• Climate Control Data
• Audio/Video Usage Data
• Biomedical or pharmaceutical Test Data

IPRS on Data

• Copyright on Data
• Copyright on Database
• Database Producer's Right (Sui Generis Right)

Copyright Protection

Can we say that data is an original work? Because in that case we could assure that copyright is granted. However, as we'll see, the answer is NO.

Copyright Protection for Data as such?

• The answer is No.
• Copyright protects original works of authorship.
• Copyright protects original expression (the 'form') of a work, but not underlying ideas, theories, methods, facts (the 'idea') because of the idea/expression dichotomy principle.
• Example: scientific work (article) is protected by copyright, but not new theory, idea, discovery, facts.

Copyright does not protect data as such, yet it protects Compilations. Copyright in Compilations of Data?

• Compilations are protected as long as they are "original".
• Remember: "Originality" can mean different things in different jurisdictions:
  • EU: from personal stamp/character to "intellectual contribution".
  • British: from "skill & labour", "sweat of the brow" to "intellectual contribution".
  • US: modicum of creativity (similar to "intellectual creation").
• Can data be protected as an original compilation of data?
  • The answer is Yes, as long as compilations are original and not just arrangements of information in alphabetical order (Feist 1991 - US).

Compilations as Precursors of Databases What is a Database? A new Copyright Subject Matter Databases are organized collection of independent data.

Copyright Protection of Databases at International Level

• 10.2 TRIPs Agreement (1994): "Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself."
• 5 WCT (1996): almost identical provision.

A EU Definition of Database "A collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means" (EU Database Directive 96/9/EC).

A US Definition of Database "A work formed by the collection and assembling of preexisting material or of data" (Title 17 US Code).

But then What really is the Subject Matter? The structure of the Database in relation to a specific selection or arrangements of the content of the database.

What about the Databases' content? The copyright protection of Databases shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.

Does Copyright on Database structure grant an exclusive right on Data? The answer is No.

The Sui Generis or Database Right in the EU

• Two premises for introducing the Database (sui generis) right:
  • Copyright might be not sufficient to protect databases around the EU.
  • A protection for copyright-free databases might be needed.
• The EU Database Directive - 96/9/EC

  Two-Tier System:

• Database "sui generis" right (for databases, including those that fail to meet originality).
• Copyright Protection (only for "original" databases).
• What does the Database Right protect?
  • It protects the investment, in terms of skills, labor, financial means, that is substantial, of the Database producer.
• Substantial Investment:
  • Qualitative
    • Expertise of a Professional.
    • Acquisition of a/the key content.
  • Quantitative
    • Expense of time, effort and energy.
    • Deployment of financial resources.
• Investment in what exactly?
  • Obtaining, gathering and collecting data.
  • Verification, checking and updating data.
  • Presentation, Digitizing, thesaurus, designing interfaces.

The activity that is missing is the generation of data, indeed ...

• How about Investment in Data Production? NO!

  The CJEU justified this exclusion:

• Investment in creation of contents irrelevant.
• Database right does not protect data as such.
• "Created" data are protected only after subsequent substantial investment.
• Rights

  Right to "prevent extraction and/or reutilization of the whole or of a substantial part, evaluated qualitatively or quantitatively, of the contents of the database" (Art. 7.1, Database Directive).

• Limitations to Database Right
  • No room for many exemptions traditionally found in copyright, such as quotation, news reporting freedoms, library privileges or reuse of government information.
  • Only few statutory limitations of the sui generis right.
  • Member States may permit private copying (from non-electronic databases only), and allow certain scientific and educational uses.
• Duration of Database Right
  • 15 Years from the date of completion of the making of the database.
  • However
  • Article 10(3): any substantial change, evaluated qualitatively or quantitatively, to the contents of the database that can be considered to be a substantial new investment shall qualify the database resulting room that investment for its own terms of protection.
• In the end: SGR/Database Right grant Protection for Data?

  The answer is Yes and No.

• Database right protects a "Database", but only structured data collections, not "raw data".
• Database must result from "substantial investment", but investment in "created data" is not protected.
• Database right does not protect data as such.
• Database right does not protect machine-generated data as such.
• But further investments can always be made.