Government copyright in databases

Governments possess overwhelming amounts of information about their citizens' personal and business lives, much of it contained in sophisticated databases. This information has tremendous value. For example, the manufacturer of Porsche automobiles would love to know which Canadians have annual incomes above, say, $250,000. In that way, a direct mailing can be efficiently and economically targeted. If such databases are "prepared or published by or under the direction or control of" the government, the government has copyright in them.

This series of articles provides an overview of copyright in databases and government copyright in Canada. The first part deals with copyright in databases. The second installment, to appear next month, discusses Crown copyright.

Copyright in databases

A database is any compilation of information that is arranged to enable a user to retrieve particular items of information. Databases include telephone directories, encyclopedias and dictionaries. Computer technology has revolutionized the quantity and quality of information that can be stored and retrieved from a database, but the essential character of electronic databases is not very different from the traditional ones.

Databases in computer form did not exist at the time our copyright legislation was originally drafted, and therefore have raised a number of interesting issues with respect to copyright protection.

In order for a work to be the subject of copyright protection in Canada, it must: (i) be one of the enumerated types of "works" defined in the Copyright Act; (ii) be original; (iii) relate to the form of expression of an idea or information; and (iv) be fixed in a material form.

The Act defines "literary works" to include "tables and compilations". In the last few years the Act has added a new definition of "compilation" to include "a work resulting from the selection of arrangement of data". Databases are merely modern and electronically compiled arrangements. They are therefore protected by copyright.

The database must be original. It is not the data itself or the source from which the data are collected that must be original, but rather the compiled database. Originality is not dependent on literary merit. For there to be originality, it is sufficient if there has been labour, skill, time, ingenuity, selection, arrangement or mental effort expended in the production of the database.

In some cases, the degree of selection or arrangement expended to compile a database may not satisfy this threshold. This selection may be restricted, such as where all relevant material is included, or may not involve any mental effort, such as where it is based on predefined parameters.

Copyright does not protect information, just its form of expression. For example, the CRTC has recently decided that basic non-confidential listing information for use in telephone directories is not protected by copyright. The CRTC acknowledged that copyright can subsist in the compilation of the same information if the compilation results from sorting, arrangement or classification. However, it concluded that raw information is not protected by copyright.

While magnetic tapes, floppy disks, silicon chips and other media which bear data would likely constitute a medium having a more or less permanent endurance so as to constitute a material form, it is possible to envisage databases which are created for a fleeting moment by the intermediate interaction or synthesis of different databases and are not expressed or fixed in a tangible or material form for any significant length of time.

Authorship and Ownership

An important issue is the determination of the author(s) of a work. With certain exceptions, the most relevant of which relate to employer-employee relationships, contractual stipulations to the contrary and government works, the first owner of copyright is the author of the work.

If the author and another person have entered into an agreement, pursuant to which the author agrees that copyright is to be owned by that other person, that other person owns copyright. Where a work is authored as part of a person's employment activities, the employer owns copyright in the work.

Copyright generally runs to the end of the calendar year in which the author dies plus 50 years. In the case of joint authors, copyright runs to the end of the calendar year in which the last one dies plus 50 years. It is therefore important to identify the author(s) of the database to determine both ownership and duration of copyright.

However, the use of computer technology in conjunction with information storage and retrieval systems raises difficult questions regarding authorship of databases.

Although data may be collected and input into a computer manually, the selection and arrangement of the data is left to computer programs. The Copyright Act contemplates that the author of a work is a human being. So the author may be the person who authored the program or the person who manipulated the program to select and arrange the data. The question becomes even more complicated where databases are synthesized and otherwise derived from other databases by computer programs. Is the computer the author?

Moral rights

Authors also have "moral rights" in their works. Regardless of who owns the copyright in a work, its author has certain moral rights, including: (i) the right to the integrity of the work; (ii) the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym; and (iii) the right to remain anonymous. This is another reason why it is essential to determine who "authored" a database.

The author's right to the integrity of a work is infringed if the work is, to the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified or used in association with a product, service, cause or institution. If, for example, the data is changed in a way which would prejudice the honour or reputation of the author, it is arguable that the author's right to the integrity of a work is infringed.

It is important to appreciate that the copyright and the moral rights may be owned by entirely different personas. Therefore, where a database is compiled by an employee or employees, the owner of copyright is the employer or, if assigned, the assignee. However, the moral rights in the work are owned by the employee(s).

Moral rights may not be assigned, but may be waived in whole or in part. Where a waiver of moral rights is made in favour of an owner or a licensee of copyright, the waiver may be invoked by any person authorized by the owner or licensee, unless there is an indication to the contrary in the waiver. An assignment of copyright in a work or the automatic transfer effected by law in the case of employment does not by that act alone constitute a waiver of moral rights.

Since moral rights in respect of a work subsist for the same term as the copyright in the work, it is essential that anyone acquiring a licence or ownership or copyright ensure that moral rights have been waived, especially if some modification to the database is contemplated.

Copyright infringement

Copyright is the sole right to produce, reproduce or perform a work or any substantial part thereof in any material form whatever. Copyright in any work is infringed by anyone who does something that the owner of a copyright has the exclusive right to do without the consent of the copyright owner.

Included as an infringing act is the reproduction, publication or adaptation of the whole or a substantial part of a work in which copyright subsists. Therefore, anyone who makes a copy of a work which is protected by copyright, or a substantial part thereof, infringes copyright subject to certain exceptions. For example, the copying of a database on to a computer tape, a disk, a chip or in printed form would constitute infringement.

The inclusion of a protected work in a printed database falls within the scope of the exclusive reproduction right of the owner of the copyright in that work. With electronic databases, however, it is less certain whether the act of storing a work in a computer memory constitutes reproduction in a material form.

In practical terms, a distinction needs to be drawn between internal storage, such as in a hard disk or central processing unit of the computer, and external storage separate from the central processing unit, for instance in a magnetic disc, drum, tape or microform CD-ROM. A further issue arises where a work is directly stored in an electronic database, without having been previously embodied in some other material form.

As mentioned, to constitute infringement, a "substantial part" of the work must be reproduced. Computer technology offers the advantages of rearrangement, combination and synthesis for the processing of data by sorting and restoring data in ways which were unimagined at the time our copyright legislation was drafted.

By way of example, selecting 50 percent of each of two databases and rearranging, combining or synthesizing them into one, would most probably constitute infringement of the copyright in each of the existing databases, even though the new database may have sufficient originality to be itself deserving of copyright as a derivative work.

Data Distribution

There are three basic ways in which data can be distributed to users from an electronic database. The first, involving the making and distributing of "copies" of the works stored in the database, clearly constitutes a reproduction and therefore an infringement of copyright, unless done without authorization.

The second, the dissemination by television signals in video text systems by a person, other than certain defined cable "retransmitters" of certain works who comply with certain conditions, constitutes a telecommunication and therefore also an infringement, unless done with authorization.

The third, transmission through wire or cable by means of an "on-line" system by a person, other than excepted "retransmitters," also constitutes a telecommunication and therefore an infringement, if done without authorization.

There are two ways in which data can be retrieved by users. The first, the reproduction on printed or other "hard" copies, would clearly constitute infringement if unauthorized. The second is visual display.

Unlike the case where a work is stored in a computer hard disk or CD-ROM, a work which is displayed is perfectly visible and comprehensible to the human eye. It is often in a page format that is similar to that of any printed version of the work. The form of fixation is transitory, and only lasts as long as the user desires to have the work displayed on the screen. The question is whether the work is fixed for long enough to be in "material form." Arguably, the work has a "more or less permanent endurance."

Visual display may also constitute a public performance of the work. The display of protected works on the visual display units of a computer terminal can be regarded as the "performance" of those works by means of a receiving apparatus.

There is no definition of the term "public" in the Copyright Act, although for the purposes of telecommunications the Act states that persons who occupy apartments, hotel rooms or dwelling units situated in the same building are part of the public. It therefore remains a matter for judicial interpretation. The word "public" has recently been interpreted quite broadly in the context of a communication "to the public," the court saying that the phrase "to the public" is distinctly different from "in public" and is much broader.

So where users of a computer database retrieve information on a visual display unit, they may be displaying or performing in public any protected work which appears on the screen and it may not matter whether the unit is situated in a publicly accessible place such as a library or in the office of anindividual user.

Copyright Plesman Publications Ltd. Aug 1995
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