The Copyright and Rights in Databases Regulations 1997

Explanatory Note

(This note is not part of the Regulations)

These Regulations implement the provisions of Council Directive No. 96/9/EC of 11 March 1996 (O.J. No. L77, 27.3.96, page 20) on the legal protection of databases (“the Directive”). The Regulations come into force on 1st January 1998.

The Directive harmonises the laws of member states relating to the protection of copyright in databases and also introduces a new sui generis right to prevent extraction and re-utilisation of the contents of a database (“database right”).

The Copyright, Designs and Patents Act 1988 (“the Act”) makes no specific provision for databases. The Act currently makes provision for protection of copyright in compilations. A database may fall to be considered as a type of compilation. The Directive requires that a database be defined and that copyright protection should only be accorded to a database which by virtue of the selection or arrangement of the contents constitutes the author’s own intellectual creation.

In relation to copyright in databases, Part II of the Regulations (Regulations 5—11) amend and modify Part I of the Act in order to properly align its provisions with those of the Directive for those matters where the Act makes no specific provision or makes different provision. In particular, the Regulations—

(a) modify the definition of literary work in section 3 by including database, as defined in the Directive (regulations 5 and 6);

(b) introduce new section 3A defining the meaning of “original” in relation to databases so that a database is only accorded copyright protection where the conditions of that section are satisfied (regulation 6);

(c) make provision for adaptation and translation in relation to a database at section 21 (regulation 7);

(d) amend section 29 so as to remove research for a commercial purpose from the general application of the fair dealing provision in relation to a database (regulation 8);

(e) introduce new section 50D containing specific exceptions to the exclusive rights of the copyright owner which permit any person having a right to use a database to do any acts that are necessary for access to and use of the contents of the database without infringing copyright (regulation 9);

(f) introduce new section 296B which renders void any term in an agreement which seeks to prohibit or restrict the doing of any act permitted under section 50D (regulation 10).

In relation to database right, the Directive provides a right for the maker of a database in which there has been a substantial investment in the obtaining, verification or presentation of the contents of the database to prevent extraction and/or re-utilisation of the whole or a substantial part of the contents of the database. Database right is to apply irrespective of the eligibility of the database for protection by copyright and without prejudice to rights existing in the contents of the database.

Part III of the Regulations (Regulations 12—25) provide for database right and in particular—

(a) make provision for the interpretation of certain terms, in particular database, extraction, insubstantial, investment, jointly, lawful user, maker, re-utilisation and substantial; and exclude public lending from database right (regulation 12);

(b) create a new property right, “database right” for a database in respect of which there has been a substantial investment (regulation 13);

(c) provide that the maker of a database is the person who takes the initiative and risk of investing in obtaining, verifying or presenting the contents and that the maker is the first owner of database right (regulations 14 and 15);

(d) provide for the acts infringing database right (regulation 16);

(e) provide that the duration of the term of protection of database right is to be 15 years from the end of the calendar year in which the making of the database was completed and that substantial changes give rise to a further term of protection (regulation 17);

(f) provide that database right does not subsist in a database unless when the database was made, or if the making extended over a period, a substantial part of that period, its maker or one of its makers meets the qualifying conditions for database right to subsist (regulation 18);

(g) provide that lawful users are entitled to extract or re-utilise insubstantial parts of a database and render void any term or condition in an agreement which seeks to prohibit or restrict such extraction or re-utilisation (regulations 19 and 20);

(h) provide specific exceptions to database right for a lawful user and other acts which may be done in relation to a database (regulation 20 and Schedule 1);

(i) provide for acts permitted on assumption as to expiry of database right and certain presumptions relevant to database right (regulations 21 and 22);

(j) apply in relation to database right certain provisions of Part I of the Act as they apply to copyright in particular dealing with the rights in copyright works, rights and remedies of rights owners and exclusive licensees (regulation 23);

(k) provide for licensing of database right and extension of the jurisdiction of the Copyright Tribunal to hear and determine proceedings relating to the licensing of database right (regulations 24 and 25 and Schedule 2).

These Regulations apply to databases made before and after the 1st January 1998. However, there is a general saving in relation to agreements made before commencement; in particular acts done in pursuance of such agreements whether before or after commencement are not regarded as infringing database right (regulations 27 and 28). In relation to a database which was created on or before 27th March 1996 (the date of publication of the Directive) and which is a copyright work immediately before commencement, copyright will continue to subsist in such a database for the remainder of the term of copyright (regulation 29). In relation to a database which was completed on or after 1st January 1983 in which database right subsists at 1 January 1998, such a database qualifies for a term of protection of 15 years from 1st January 1998 (regulation 30).

A Compliance Cost Assessment is available, copies of which have been placed in the libraries of both Houses of Parliament. Copies of the assessment are available to the public from the Copyright Directorate of The Patent Office, 25 Southampton Buildings, London WC2A 1AY.