If a website provider includes databases on its site, can it stop other people from using or reproducing data from those databases?

Yes. A database is protected as a literary work under the Copyright Act 98 of 1978 whilst computer programs are protected as a separate class namely “computer programs”.

Section 1 of the Copyright Act 98 of 1978 defines a computer program as [private]a “set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result”.  It is thus important to check whether or not the source code contains a set of instructions which, when used in a computer, directs its operation to bring a result.

A database schema does not consist of a set of instructions. Rather it includes a table with a certain number of columns which may vary in width.

In the 2006 Appeal Court case of Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Limited and Others 2006 (4) SA 458 (SCA), the Court distinguished between computer programs and databases as separate categories of work eligible for copyright under the Copyright Act. In this case they held the bare database to be a computer program and considered the database schema to be a literary work and not a computer program. This was, however, always subject to the proviso that the database schema was first created by a person and not a computer (a person can use a computer to assist him create the database in much the same way as a document is created using a Word processor) otherwise the Court said that it will be treated as a computer program.

Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through – e-Commerce 2009, (published in August 2008 – contributing editor Robert Bond). For further information please visit www.GettingtheDealThrough.com.