Databases have become very valuable assets. People often ask, what is the law relating to databases? What is a database? How do you define a database in an agreement? How does the law protect different aspects of a database? What type of work (for the purposes of copyright protection) is a database? Can a database qualify for copyright protection?
Do I have rights to a database even if it is simply a compilation of non-infringing material? For example, you may have a database of publicly available information. You are just the only person to have compiled all of that publicly available information in a database. Do you have any rights to the database?
a database is a collection of data from where it may be accessed, reproduced or extracted
The ECT Act defines an electronic database to be “a collection of critical data in electronic form from where it may be accessed, reproduced or extracted“. From this one could define a database as “a collection of data (usually in electronic form) from where it may be accessed, reproduced or extracted”. But we have to dig deeper than that.
Eligible for copyright protection?
Can copyright indeed exist in a database? Yes it can.
Section 2 of the Copyright Act 98 of 1978 specifies the works eligible for copyright. They include computer programs and literary works. Section 1 of the Copyright Act 98 of 1978 defines:
- a computer program as 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“.
- a literary work to include “tables and compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer“.
A database is essentially a literary work
A database can be made up of the following:
- database structure– a literary work, including:
- a schema being a table and compilations with a certain number of columns which may vary in width and fields; and
- a database model (relational or other)
- recorded data or information records, or files (usually in electronic form) – each a literary work
- complied data (accumulated from other sources) – the compilation itself is a literary work
- database management system (DBMS) – a computer program.
In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd and Others it was held that database structures are literary works and not computer programs.
There is also usually a DBMS, a computer program that controls the creation, maintenance, and the use of the database. For example, MySQL, PostgreSQL(open source) or MS SQL Server. The copyright to this computer program is usually owned by a vendor.
A computer program and a literary work are both eligible for copyright protection and therefore a database is too.
We have set out the different elements of a web site, including a database in this diagram.
Qualifying for copyright protection
So, the next question is when will a database qualify for copyright protection? A database will qualify for copyright protection if it:
- is original;
- exists in a material form (or represented in digital data);
- is created by a qualified person (in terms of the Copyright Act) or first published in a country allowed for in the Copyright Act.
From the above it follows that, in terms of our law, a database can qualify for copyright protection, without any creativity being a requirement, as in certain other jurisdictions. Further to this, our law does not require a great deal of effort to meet the requirement of originality. Our Supreme Court of Appeal – the highest authority on issues like this – has ruled in Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd and Others that “a work is considered to be original if it has not been copied from an existing source and if its production required a substantial (or not trivial) degree of skill, judgment or labour.” A database may meet this requirement fairly easy.
Copyright protection has frequently been extended to compilations of non-infringing material because of the labour and skill involved in selecting and arranging the material. In Payen Components Sa Ltd v Bovic CC and Others protection was given to a catalogue and price list. In Exchange Telegraph Co Ltd v Gregory & Co  1 QB 147 protection was given to a list of stock-exchange prices. So, you can have rights to a database even if it is simply a compilation of non-infringing material or publicly available information?
Owner of copyright
Who is the owner of the copyright in the database? The author will be the first owner of the copyright in the work. The author is the person who first makes or creates the work into a material form by applying some form of intellectual effort and skill. The requirements in terms of the Copyright Act must be met. Generally speaking the person compiling or creating the database will be the author and first owner of the copyright in the database. But again we must dig a little deeper. There might be various different owners of the different aspects of the database. For example, the situation might be as follows:
- database structure – you
- recorded data – a third party
- complied data – you
- database management system – a third party
Where the creator of the work is an employee, the employer owns the copyright in the work. The author can also assign their rights to the work to another person, who then becomes the owner.
Section 6 of the Copyright Act sets out the exclusive rights of the copyright owner. For the purposes of this article, the important aspect is that the copyright owner has the exclusive right to reproduce the database in any form or authorise the reproduction of the database in any form. This applies equally to reproductions in digital format. It has been held in Pastel Software (Pty) Ltd v Pink Software (Pty) Ltd that the making of temporary or permanent electronic copies of works amounts to copyright infringement. The mere fact that a work can be accessed online does not have any effect on the copyright protection of the work. In essence, the restricted acts amount to the copying or commercial exploitation of the work.
Infringement of copyright in a work may be direct or indirect. A person directly infringes the copyright of another when they do something that is the exclusive right of the copyright owner, without the permission of the copyright owner. For example, a direct infringement is to reproduce a database without consent. A person indirectly infringes the copyright of another when for example, they permit a facility to be used to reproduce a database, knowing that the reproduction lacks the consent of the copyright owner.
If an Internet Service Provider (ISP) makes an unauthorised reproduction of a protected work (for example for technical reasons such as caching) it may be liable for direct infringement of copyright. If an ISP transmits or facilitates access to copyright infringing material it may be liable for at common law. Although “contributory infringement” has not been established in South African copyright law, there are indications that our courts will be prepared to accept it.
Technological innovation poses difficult challengers for copyright law and policy. This is especially true with regard to the Internet and databases made available through the Internet. It is often difficult to establish copyright infringement, because of the difficulty in establishing the identity of the person who committed the infringement.
The copyright holder does not have an all-inclusive property right to the database – there are exceptions and limitations. The justification for all of the exceptions and limitations is the public interest. Section 12 of the Act deals with the exceptions.
The remedies available to a successful plaintive in an action for infringement of copyright are:
- damages – all damages need to be proved and the copyright owner has an obligation to mitigate (limit) their damages
- injunctive relief – in other words, an interdict to prevent the person from continuing to infringe their copyright; and
- legal costs.
The impact of contractual limitations
Agreements (for example, web site terms and conditions or licence agreements) usually override copyright exceptions. Licensors are not obliged to consider public policy relating to fair use exceptions. A breach of contract can result in a claim for damages. So even if you do have copyright protection under copyright law, it is always better (if you are the owner) to also have contractual protection. It is often easier to take action for a breach of contract, than for copyright infringement.
We started off with a lot of questions. We hope that we have answered all of your questions along the way. It is a very difficult and complex subject and we would appreciate your comments. Please do not hesitate to contact us if you do still have any unanswered questions.