The database right: Copyright and confidential information
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Philip Westmacott is a partner at Bristows and heads the firm’s IT Practice. He specialises in intellectual property and has advised in the IT sector for over 18 years.
Harjinder Obhi is a solicitor in the intellectual property department at Bristows. He holds a PhD in physics and specialises in matters relating to IT.
Abstract Databases lie at the very heart of the bioinformatics field. Traditionally, database owners have had to rely on copyright and confidential information rights to protect their databases. Database owners should find the current harmonised European approach to the legal protection of databases encouraging. Essentially, databases can be protected through copyright and a separate, recently introduced European intellectual property right called ‘database right’. Creators of databases must, however, have sufficient nexus with Europe (actually the European Economic Area or ‘EEA’) in order to ensure that their databases qualify for protection under the new database right. Databases can also be protected under the law of confidentiality. This briefing paper outlines the position in the United Kingdom.
Philip Westmacott Bristows, 3 Lincoln’s Inn Fields, London WC2A 3AA, UK. Tel: ⫹44 (0)20 7400 8000; Fax: ⫹44 (0)20 7400 8050; e-mail: philip.westmacott@ bristows.com
DATABASES DEFINED The legal definition of a ‘database’ is quite broad: ‘A collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’. Note that this includes a non-electronic database and that it is not necessary for the works, data or other materials to be physically stored in an organised manner. It is also important to realise that a computer program used in the making or operation of the database is not protected as a ‘database’ under database legislation (it could, however, be protected as a ‘computer program’ under copyright law, or if sufficiently inventive, it could be patented). Although the works, data or other materials in the database can be just about anything, a recording or an audiovisual,
䉷 Henry Stewart Publications 1350-2328 (2001)
Vol. 9, 1, 75–78
cinematographic, literary or musical work as such is excluded from the definition of a ‘database’. Once it has been established that there is the requisite collection of materials to constitute a database, there are two main ways in which it can be protected — copyright and database right. It is possible for copyright and database right in one database to be owned by different people. Moreover, some databases may not be eligible for protection by both forms of intellectual property right. COPYRIGHT Copyright can only exist in a database that is sufficiently ‘original’. A database is original if and only if, by reason of the selection or arrangement of the contents of the database the database constitutes
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the author’s own intellectual creation. This is a quantitative criterion and no aesthetic or qualitative criteria sho
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