Transcript Database Protection - The Emergence of Dataright

Database Protection
The Emergence of Dataright
Victor H. Bouganim
WCL, American University
Victor H. Bouganim, WCL, American University, Spring 2001
Digital Works
Works in Digital Form
Database
Software
e.g.: audio CD; WP document; image file etc..
Victor H. Bouganim, WCL, American University, Spring 2001
Database - Definition
 Information
that has been collected and has
been organized for the purpose of bringing
discrete items of information together in
one place or through one source so that
persons may access them.
[HR 354 and HR 1858]
Victor H. Bouganim, WCL, American University, Spring 2001
Case Study: Jurisline
 Mathew
Bender v Jurisline.com
– An Internet portal providing access to
legal materials.
– Compiled its database by extracting
materials from Lexis.
– Is it legal?
Out
of Court settlement, June 2000.
Victor H. Bouganim, WCL, American University, Spring 2001
International Database Copyright
Collections of literary  The expression 'literary
and artistic works such
and artistic works' shall
as encyclopedias and
include every
anthologies, which by
production in the literary,
reason of the selection
and arrangement of their scientific and artistic
domain, whatever may be
contents constitute
the mode or form of its
intellectual creations,
shall be protected as
expression, such as
such.
books, pamphlets and
 Berne, Art. 2.5
other writings...


Berne, Art. 2.1
Victor H. Bouganim, WCL, American University, Spring 2001
International Database Protection
 Object
of protection
– compilations of data or other materials
 Nature
of protection
– Copyright by reason of the selection or
arrangement of the database content

Safeguards
– protection shall not extend to the database content
– without prejudice to any copyright in the database
content
[GATT TRIPS, Art 10.2; Copyright Treaty Art. 5]
Victor H. Bouganim, WCL, American University, Spring 2001
Database Copyright
 Compilations
of data or other materials,
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.
– TRIPS, Art. 10.2; WCT, Art. 5
– Compare: US Copyright Act, § 103.
Victor H. Bouganim, WCL, American University, Spring 2001
USA - Compilation Copyright -1
 A "compilation"
is a work formed by
the collection and assembling of
preexisting materials or of data that are
selected, coordinated, or arranged in
such a way that the resulting work as a
whole constitutes an original work of
authorship.
[Copyright Act, § 101]
Victor H. Bouganim, WCL, American University, Spring 2001
USA - Compilation Copyright - 2
 The
copyright in a compilation ... extends
only to the material contributed by the
author of such work …
 The copyright in such work is independent
of, and does not affect ... any copyright
protection in the preexisting material.
[Copyright Act, § 103]
 Feist
v Rural, SC, 1991.
Victor H. Bouganim, WCL, American University, Spring 2001
Feist Publications v. Rural Telephone Service
Supreme Court (1991)
The Court found that Rural’s copyright in its
listings did not protect the names and numbers
copied by Feist
 Protection of a factual compilation extends only to
its original arrangement or selection
 A work must possess at least some minimal degree
of creativity
 The Court discarded the “sweat of the brow”
doctrine as the standard for copyrightability

Victor H. Bouganim, WCL, American University, Spring 2001
Feist Pub. v. Rural Telephone
S. Ct., 1991

Feist copied portions of Rural Telephone’s directory
and incorporated them into its own larger directory.
 “Although
a compilation of facts may possess
the requisite originality because the author
typically chooses which facts to include, in what
order to place them, and how to arrange the data
so that readers may use them effectively,
copyright protection extends only to those
components of the work that are original to the
author, not to the facts themselves.”
Victor H. Bouganim, WCL, American University, Spring 2001
Class Discussion
 Does
Feist provide any guidelines for
determining the precise threshold for protected
compilations?
 Given the ‘thin copyright’ protection provided
for compilations, what can compilers do to
protect their investment in creating databases?
 Do sweat of the brow works merit protection?
 Should the public interest dictates that the
extraction of facts from databases -even wholesale extraction -- be allowed?
Victor H. Bouganim, WCL, American University, Spring 2001
Models of Protection
Contracts
Unfair Competition
Unjust Enrichment
Victor H. Bouganim, WCL, American University, Spring 2001
ProCD v Zeindenberg
7th Cir., 1996
ProCD compiled information from over 3,000
telephone directories into a computer database and
sells the database in a 5 CD-ROM set.
 Zeidenberg purchases the ProCD database,
accompanied by a shrinkwrap license, and makes
the information available on the Internet for a
price that is less than ProCD charges.
 The court finds, under theories of contract law,
that shrinkwrap licenses are enforceable unless
their terms are objectionable on grounds
applicable to contracts in general.

Victor H. Bouganim, WCL, American University, Spring 2001
eBay v Bidder’s Edge
Dist. ND CA, 2000


Bidder’s Edge, an auction  Court finds for eBay
aggregation site, utilizes
based on trespass to
software robots to access
eBay 100,000 times per
chattels claim and
day, burdening system
issues
preliminary
capacity.
injunction preventing
eBay moves for preliminary
Bidder’s Edge from
injunctive relief preventing
Bidder’s Edge from
accessing eBay
accessing eBay based on
without written
nine causes of action,
authorization.
including copyright
infringement.
Victor H. Bouganim, WCL, American University, Spring 2001
Dataright Features
§
§
§
§
§
§
§
Object of protection
Nature of protection
Beneficiaries
Producer’s rights
User’s rights
Exclusions and safeguards
Term of protection
Victor H. Bouganim, WCL, American University, Spring 2001
Dataright
Object of Protection
Information that has  A collection of
been collected and has
independent works, data
been organized for the
or other materials
purpose of bringing
arranged in a systematic
discrete items of
information together in or methodical way and
one place or through
individually accessible
one source so that
by electronic or other
persons may access
means.
them.
[HR 354 and HR 1858]
[Database Directive, Art. 1.2]
Victor H. Bouganim, WCL, American University, Spring 2001
Dataright Features - 1

Database Directive,
EU, 1996.
Database protection copyright and suigeneris rights.
 Duration of the suigeneris right: 15 years.
 In force from 1
January 1998.

HR 354 - Collection of
Information Antipiracy
Act 1999.
 Prohibition of extractions
from collection of
information.
 Protection is limited to
collections which are 15
years old.
 Pending bill.

Victor H. Bouganim, WCL, American University, Spring 2001
Dataright Features - 2
Database Directive,
EU, 1996.
 Permitted acts and
exceptions

– private purposes (nonelectronic databases
only)
– illustration and
teaching and more.
– Generally, more
narrow than HR 354.
HR 354 - Collection of
Information Antipiracy
Act 1999.
 Permitted acts and
Exceptions

– reasonable uses
– illustrations, teaching
– non-profit educational
uses and more.
Victor H. Bouganim, WCL, American University, Spring 2001
Dataright
Producer’s rights
Extraction
Utilization
Victor H. Bouganim, WCL, American University, Spring 2001
Exclusions
Dataright
 Permitted
and safeguards
uses
– educational
– scientific research
– verification purposes
– news reporting
 Special
cases
– public sector information
– exclusive sources
Victor H. Bouganim, WCL, American University, Spring 2001
British Horseracing v. William Hill Org.
UK, Chancery Division, Patents Court, Feb 2001



This case, decided under the Directive, involved the database
right, and was concerned with the extent to which BHB can
prevent WHO from using certain horseracing data derived
indirectly from BHB’s database.
The maintenance of BHB’s database involves extensive
efforts, including the collection of raw data, the design of the
database, the selection and verification of data for inclusion
in the database and the insertion and arrangement of selected
data in the database.
WHO is one of the leading providers of off-track betting in
the UK and elsewhere, to both UK and international
customers.
Victor H. Bouganim, WCL, American University, Spring 2001
Data Flow - BHB Case
SIS
WHO
BHB
Licensee
WHO
Website
Licensee
Victor H. Bouganim, WCL, American University, Spring 2001
BHB’s Arguments
 Each
day’s use by
WHO of data is an
extraction or reutilization of a
substantial part of
the contents of its
database contrary to
the Directive.
Art. 7(1)
 Even
if the individual
extracts are not
substantial, the totality
of WHO’s actions
amounts to repeated and
systematic extraction or
re-utilization of
insubstantial parts of the
database.
Art. 7(5)
Victor H. Bouganim, WCL, American University, Spring 2001
WHO’s Arguments
 What
WHO has used is not a part, in the
relevant sense, of the BHB database.
 Even if it is a part, it is not a substantial
part.
 The use does not amount to an
“extraction” from the BHB database.
 The use is not a “re-utilization” of the
BHB database.
Victor H. Bouganim, WCL, American University, Spring 2001
Court’s Findings
INFRINGEMENT: WHO’s taking of information and
loading it onto its own computers to make available at its
website is unlicensed extraction of a substantial part of the
BHB database and re-utilization by the subsequent
transmission of that data onto its website for access by the
public.
 INFRINGEMENT: WHO’s daily borrowing from the
BHB database falls under Art. 7(5) as repeated and
systematic extractions and re-utilizations of parts of its
contents.

Victor H. Bouganim, WCL, American University, Spring 2001
Next IPR System?
Victor H. Bouganim, WCL, American University, Spring 2001