Part Seven: Non-Original Databases
A. The Issues
230. Digital technology has greatly reduced the effort required to compile, compress and arrange large amounts of information contained in traditional media into databases. At the same time, the digital on-line environment has arguably increased the difficulties database producers face in controlling access to their products and preventing unauthorised copying, utilisation and information extraction. Users of information also have concerns about the control of and access to information compiled in electronic databases and fears that any increased proprietary rights in databases will "lock up" information.
231. The discussion paper asked whether there is a need to provide additional protection for databases above what is already available under the Act, and if so should protection be provided through the Act, or sui generis legislation, or both.
B. The New Zealand Situation
232. The Act provides protection for databases that qualify as "compilations" within the definition of a literary work. To attract copyright protection, however, works must be sufficiently original. A compilation could be considered original for the purposes of copyright where a database producer has contributed sufficient time, skill and effort in selecting and arranging the data or information. Copyright would not, however, attach to the information itself; it would only apply to any sufficiently original selection, layout or arrangement of the data and information.
C. The International Situation
WIPO
233. There is no international treaty concerning the provision of additional protection to electronic databases. While a draft databases treaty was prepared for the diplomatic conference that concluded the WIPO Internet Treaties , it was not discussed. The WCT simply re-affirms the protection afforded to compilations of data under TRIPS and as currently provided under the New Zealand Act. The issue of additional protection for databases is, however, on the work plan of the WIPO Standing Committee on Copyright and Related Rights, but substantive proposals have yet to be developed.
European Union
234. A sui generis database right was created by the Directive on the legal protection of databases79
("the Database Directive").80 The Database Directive enables database makers to obtain an exclusive right to prevent extraction and reutilisation of the whole or a substantial part, evaluated qualitatively and quantitatively, of the contents of a database. The right lasts for an initial period of at least 15 years, and may be continually renewed by the publisher of the database for additional fifteen-year terms if additional investment has been made in the database.
235. To obtain protection, database makers must prove that "there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents or in any substantial change resulting from the accumulation of successive additions, deletions or alterations".81
D. Options
236. The majority of respondents who addressed the database question considered there was no need to provide additional protection for non-original databases. Several respondents cited the low threshold test for "originality" in New Zealand as the reason for this view.
237. Of the small number of respondents who considered additional protection was required, the majority favoured changes to the Act rather than the development of sui generis database protection (only two respondents considered that the European model should be considered).
238. Some respondents, while not arguing in favour of additional protection, suggested legislative clarification of the originality requirement to provide certainty.
239. The following options have been identified following analysis of submissions:
- No change required (on the basis of the low threshold for originality).
- Clarify of the originality requirement to provide certainty (if so how?)
- Extend copyright protection to "non-original" electronic databases.
- Create separate sui generis legislation (similar to the Database Directive) to protect "non-original" elements of databases.
240. Overall, there does not seem to be a need to extend protection for non-original databases beyond protection as compilations, due to the low threshold or originality in New Zealand. There may, however, be a need to reconsider this issue in the future depending on how the work on the WIPO Standing Committee on Copyright and Related Rights progresses.
79 1996/9/EC, 11 March 1996.
80 Adopted in March 1996 with a requirement for implementation in Member States by January 1998.
81Standing Committee on Copyright and Related Rights, Seventh Session, May 2002,
Study on the Protection of Unoriginal Databases (SCCR/7/3).
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