Protecting databases under the law

By Li Min and Zhang Jing, Run Ming Law Office

The development of a database industry is the basis for the construction of an information society. In China, there is not yet a legal definition of what constitutes a database. Scholars explain it as “a compilation of information, systematically organized according to a given purpose and given requirements, that has undergone screening in a particular way”.

Although the world has entered the information age, the legal protection of databases in China remains unsatisfactory.

Protection under copyright law

Article 14 of the PRC Copyright Law states: “As regards the compilation of several works, fragments of works or data or other materials that do not constitute a work, where the selection or arrangement of their contents reflects originality it is a compiled work the copyright of which is enjoyed by the compiler.”

李敏 润明律师事务所 合伙人 Li Min Partner Run Ming Law Office
Li Min
Run Ming Law Office

When considering the legal status of a database, it is usual to consider whether the database falls within the legal definition of a compiled work. If it falls within this definition, it can be protected by copyright law.

Copyright protection is the main form of legal protection accorded to databases internationally. The holder of copyright in a database can exclusively enjoy the benefits accruing from it, and may also take the initiative to prevent potential violations. When the copyright is violated, he or she has a clear means of seeking legal redress.

However, there are also problems with the protection of databases through copyright.

First, the protection afforded by copyright may be weak. On the one hand, there is no clear rule in the current Copyright Law defining the criteria to judge the “originality” of a database. Much controversy has been generated over this issue. Generally, there is a division between the principle of “hard work” and the principle of “independence and creativity”. Under the latter principle, the requirements for “originality” are higher, and this principle is more commonly adopted in judicial practice. But although copyright law can protect databases which are manifestly “original”, it cannot effectively protect those whose originality is unclear or is a matter of controversy.

On the other hand, because copyright law only protects forms of expression but does not protect ideas, even if the content selection or arrangement of the concepts and processes of the database is unique, copyright law will not apply. In other words, if in the realm of expression the database cannot show “uniqueness” in conceptualization and the process of formation, it is difficult for it to obtain copyright protection.

Second, there is a contradiction between the requirement of originality under copyright law and the need for the database to be practically useful. The more detailed the contents of the database and the more information it contains, the more likely is it to meet with commercial success; but the more likely is it also to be seen as lacking in the expenditure of intellectual labour in the selection process and in “originality”.

If this is the case, it will be difficult for the database to be identified as a compiled work and to thus obtain copyright protection.

Protection under competition law

As the Copyright Law does not offer full protection to databases and the requirement for the “originality” of a database is very demanding, the PRC Anti-Unfair Competition Law has become the main legal basis for protection of databases. For example, in Sunshine Data Corporation v Bartech Data Information Company, although the court of second instance ruled that Sunshine’s database was not a compiled work it found that Bartech’s behaviour constituted unfair competition and ordered that it be held
economically liable.

张静 Zhang Jing 律师 润明律师事务所 Lawyer Run Ming Law Office
Zhang Jing
Run Ming Law Office

However, using competition law to protect databases is also beset with problems.

First, there is considerable uncertainty in relation to identification. The identification of a rights holder’s rights is especially blurred, making it difficult for those whose rights have been infringed to prove this to be the case.

Second, the protection provided by the Anti-Unfair Competition Law is passive. Rights holders can only demand the restoration of their rights after an infringement of a database has occurred. The Anti-Unfair Competition Law cannot provide a legal basis for someone who wishes to assert their rights to a database if there has been no infringement.

Other modes of protection

Apart from protection through the Copyright Law and through the Anti-Unfair Competition Law, scholars are also discussing other ways of protecting databases. There is no shortage of practical applications for some of these:

Contractual protection. This gives a person with rights over a database another effective channel to protect his or her rights. However, it is difficult to rely on contracts to bind third-party infringers.

Protection of trade secrets. However, trade secrets are, by definition, secret. To protect a database in this way may contradict the hope of the rights holders that their databases will become widely used and therefore realize the economic value in them.

Protection through the establishment of special rights, i.e. establishing the rights to the database as independent intellectual property rights worthy of protection. In China, this method is still being studied by academics and lacks legal feasibility.

A database industry is important in the development of an information economy. It is critical from a legal perspective to protect databases and promote their vigorous development. Although there are still gaps in PRC law relating to databases, we should not be negative. At this stage, we should fully utilize the existing legal provisions and actively explore comprehensive modes of protection that use the Copyright Law, the Anti-Unfair Competition Law and a combination of contract law and the protection of trade secrets. As we protect the legitimate rights and interests of the database rights holders, we should encourage the development of the industry and provide effective legal guarantees for the development of the database industry.

Li Min is a partner and Zhang Jing is a lawyer at Run Ming Law Office

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