Updated as at 7/8/2001.

1. What is a Database?

A database is a collection of data arranged in a systematic way to allow for the easy and efficient retrieval of information. It is usually in an electronic form.

A database must be distinguished from a database system (sometimes known as a database management system) which is a software or computer program which administers the database. This is an important distinction to keep in mind when considering what is protected in a database.

The traditional form of database was usually a collection of records kept in a file. It took the form of a compilation, a table or a list and the creation of such databases was laborious and time-consuming. With digital technology, the compilation of databases can be done much more easily and for less cost. Unlike traditional databases, new digital databases can be compiled wholly by a computer in accordance with certain instructions or certain parameters. No human activity may be necessary to generate a digital database.

Databases may be a valuable part of the assets of a business. New technology facilitates the creation of complex and highly functional databases and the collection and storage of data in different ways.

2. Digital Database Protection in Australia

In Australia, there is no specific law protecting data or databases in their own right. Instead, databases may be protected under general copyright law.(1) A database may receive copyright protection as a "literary work" in two separate ways:

(a) if the content of the database is original, in the sense that it has originated from the author and has not been collected from other sources; or

(b) sufficient skill and labour has gone into the selection, presentation and arrangement of the data so as to make the "compilation" the original work of the author.(2)

3. When is a database original?

To be protected under Australian copyright law, material must be "original".(3) "Originality" has a special meaning in copyright law. It does not mean that the material must possess any "creative" qualities, merely that it has originated with the author and has not been copied. Generally a database will consist of facts, figures and other known elements. Generally the content will not originate with the author but will be collected from other sources.

4. Copyright protection as a compilation

If the content consists of factual material, it will not be protected by copyright as there is no copyright in facts, only in the form in which facts are expressed. In this case the database may still receive protection as a special kind of literary work, known as a "compilation". For compilations, it is not the content that is directly protected by copyright, but the selection, presentation and arrangement of material. If the selection, presentation and arrangement of material has not been copied, the database may be protected as an original compilation. This is the main form in which databases are protected under Australian law. The threshold of originality is not very high, requiring only the expenditure of some skill and labour by the author of the compilation.(4)

5. Potential difficulties obtaining copyright protection

Two potential difficulties may prevent a database from receiving copyright protection. First, if the material is organised in a standard arrangement, such as in alphabetical or numerical order, it is difficult to argue that the arrangement has originated with the author. Secondly, the requirement that an author expend skill and labour in compiling the material poses a problem for machine-generated databases. Many of today’s databases are simply vast collections of information stored digitally. Most database management systems allow a user to pull out any type or combination of types of data, according to the specific needs arising at the time. In such instances the computer selects and arranges the information into a database, not the human author. In these circumstances, it is difficult to argue that the selection and arrangement of material is "original", in the sense that the database has resulted from the labour and skill of a human author. Existing copyright law may therefore provide little protection for digital databases.

Whereas a database may be protected as a "compilation" under copyright law, a database management system will receive copyright protection as a "computer program". It may therefore be easier for a database management system to be protected by copyright than for the database itself to receive protection.

6. Other Protection for Databases

If the database can be categorised as confidential information and any recipient of the database is placed under an obligation of confidence, then it may be possible to protect the database as confidential information. Certain requirements must be met before a database can be categorised as confidential and it is unlikely most digitally generated databases would meet the requirements.

For further information, see Confidential Information Fact Sheet.

In certain circumstances, the refusal to share your database (eg where the database is unique and could only be created because of its owner’s position in the relevant market), may constitute misusing one’s market power and amount to a breach of Part IV of the Trade Practices Act 1975 (Cth).(5)

7. Special Database Protection Legislation

Europe has special database protection legislation which provides 15 years protection for databases.(6) In a related development, the World Intellectual Property Organisation considered approving a Treaty on Intellectual Property in Respect of Databases in its December 1996 Conference but the participating members did not reach an agreement. In the United States, at least two attempts have been made to pass a similar law to protect databases but opposing policy arguments have so far stalled the bills proceeding to legislation.

In Australia, the Copyright Law Review Committee (CLRC) recommended in a 1995 report on computer software protection that a new category of "computer generated material" for copyright protection should be created. This category is defined as "the material generated by computer in circumstances where there is no human author of the material". The scope of this definition would include a computer-generated database. These recommendations were not adopted by the government in its most recent amendment to the Copyright Act and it remains to be seen whether Australia will follow Europe’s initiative in database protection.

In a 1999 report on the Simplification of the Copyright Act 1968, the CLRC recommended introducing a distinction between two kinds of copyright material, "creations" and "productions".(8) The proposed distinction was intended to deal with the difficulty of applying the threshold test for "originality" to material that is generated largely by computer, not by human authors. The CLRC recommended defining a "production" as "subject matter in the literary or artistic domain that is the result of the application of time, effort and resources by the person who undertakes the production". A creation, on the other hand, would have a higher threshold of originality, requiring "significant intellectual effort". Under this approach, digital databases would be protected as "productions", and would have a lesser standard of copyright protection than "creations". These recommendations were not adopted by the government in its most recent amendments to the Copyright Act and it remains to be seen whether Australia will follow Europe’s initiative in database protection.



Other relevant Fact Sheets:

Sources of Law
* Copyright Act 1968 (Cth)
* Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
* EU, Directive 96/9/EC on the legal protection of databases, 11 March 1996
* Football League Ltd v Littlewoods Pools Ltd [1959] 1 Ch 637
End Notes
1. Copyright Act 1968 (Cth)

2. Section 10(1) Copyright Act 1968 (Cth) . See also Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273

3. section 32 Copyright Act 1968 (Cth)

4. Football League Ltd v Littlewoods Pools Ltd [1959] 1 Ch 637; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273

5. See the 1997 media release from the ACCC which describes the action ACCC brought against Telstra for its refusal to share the telephone directory data with its competitors: http://www.accc.gov.au/media/mr1997/telstra.htm

6. See Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases

7. CLRC, Computer Software Protection, April 1995, recommendation 2.42(b)

8. CLRC, Simplification of the Copyright Act 1968, Part 2, February 1999, para 5.33