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 is distinguished from a database management system which is software or a computer program which administers the database.

2. Database protection in Australia

There is no specific Australian law protecting data or databases in their own right. Databases may be protected under general copyright law(1) as a "literary work" in two separate ways:

(a) if the content of the database is original(2) (eg 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 to make the "compilation" the original work of the author.(3)

Originality means the material has originated with the author and has not been copied.

3. Issues with database protection

A database will usually consist of facts, figures and other known elements not originating with the author but collected from other sources. Copyright does not exist in facts but exists in the form in which facts are expressed. A database comprising only factual material collected from other sources and not originating with the author will not be copyright protected.

A database is more likely to receive copyright protection as a special kind of literary work known as a compilation. This is the basis on which most databases are protected under Australian law. Copyright protects the selection, presentation and arrangement of material in a compilation, not the material itself. A database will be protected as an original compilation if the selection, presentation and arrangement of material is not copied. The threshold of originality requires only the expenditure of some skill and labour by the author of the compilation.(4)

The following issues may prevent a database from being copyright protected:

(a) material organised in a standard arrangement (eg alphabetical or numerical order) is unlikely to have originated with the author;

(b) machine-generated databases are unlikely to involve the necessary expenditure of skill and labour by the author in compiling the material.

Most current 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. The computer selects and arranges the information into a database, not the human author. It is unlikely the selection and arrangement of material is "original" and has resulted from the labour and skill of a human author. Existing copyright law may provide little protection for computer generated databases.

A database may be protected as a "compilation" under copyright law but a database management system is likely to receive copyright protection as a "computer program". It may be easier to obtain copyright protection for a database management system than for a database as a compilation.

4. 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, the database may be protected as confidential information. Certain requirements must be met before a database can be categorised as confidential information. It is unlikely most computer generated databases would meet the requirements. See Confidential Information Fact Sheet.

5. Trade practices legislation

Where a database is unique and could only be created because of the position of its owner in the relevant market, the refusal of the owner to share that database may constitute misusing market power and constitute a breach of the Trade Practices Act 1975 (Cth).(5)


Other relevant Articles on this site:
Spamming
Customer information privacy
Security

Other relevant Fact Sheets:
Confidential Information
Copyright
Database Protection
Patents
Privacy

End Notes
1. Copyright Act 1968 (Cth)
2. Copyright Act 1968 (Cth) section 32
3. Copyright Act 1968 (Cth) section 101(1). See also Ladbroke (Football) Ltd v William Hill (Football) Ltd) [1964] 1 WLR 273
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.