IT development has made the functioning of various databases almost fundamental to business operations today. A database is synonymous with a phone book, a dictionary, a collection of systematized press advertisements, or links to websites. Digital technology allows for easy and almost free copying of other people’s databases, especially those made available on the Internet. If the competition is able to “take over” selected elements of our database without much difficulty, such a situation may call into question the profitability of creating databases on one’s own.
As early as 1988, intellectual property law specialists recommended introducing detailed regulations dedicated to database protection into European Union legislation. The main reason for such suggestions was the low level of legal protection for databases guaranteed by copyright law. Work on a directive to ensure adequate protection of databases began in March 1992, when the Commission presented the first version of the document. Finally, on March 11, 1996, the final version of the European Union Directive 96/9/EC on the legal protection of databases was adopted. Polish regulations were modeled on this document.
“Two-track” regulations
The protection of databases, both in light of EU regulations and domestic provisions, is currently based on the so-called “two-track” approach. In Poland, creators of databases can seek legal protection in the provisions of copyright law (the Act of March 4, 1994, on Copyright and Related Rights) and the regulations of the Act on the Protection of Databases. The first act applies to databases whose selection, arrangement, and compilation are creative in nature. Compilations of this kind have often been referred to as “creative databases.” This deprives collections where elements have been arranged alphabetically or chronologically of the possibility of being covered by protection. Due to this limitation, the protection of databases is supplemented by the provisions of the Act of July 27, 2001, on the Protection of Databases. They enable the protection of databases that do not meet the criteria to be considered the subject of copyright. One can risk the thesis that currently, most databases used in business operations cannot count on obtaining the status of a work within the meaning of copyright law. At the same time, creating such compilations of information is often associated with significant costs. Depriving, for example, economic analysis compilations of protection due to the lack of the “creative compilation” premise was undoubtedly detrimental to their creators. Due to this, the Directive of March 11, 1996, on the protection of databases introduces protection for all databases, where the premise for applying legal regulations is the creator incurring significant investments related to the creation and operation of the database. An analogous solution was found in Polish law. These provisions will be supplemented and clarified by judicial bodies, but currently, there is a lack of court rulings in Poland related to database protection.
Therefore, in order to better illustrate the issues raised, one should reach for examples taken from the case law of European Union member states.
According to the definition contained in the Polish act, a database is a collection of data or any other materials and elements gathered according to a specific system or method, individually accessible in any way, including by electronic means, requiring a significant investment in terms of quantity or quality for the preparation, verification, or presentation of its contents. The use of the term “collection of data” by the legislator excludes the possibility of considering a single element as a database, even if its acquisition involved significant investment outlays. Furthermore, there are no guidelines regarding the minimum number of components that will constitute a database.
Since when is it a database?
Depending on the amount of investment incurred to obtain the elements, in some cases, one can risk the statement that even two components can constitute a database. One must also not forget about electronic databases, which contain a different number of elements almost every day, e.g., databases of press advertisements. In practice, it may happen that for a moment, this database will contain only a few advertisements. This type of database can be described as “dynamic.” Constant updating of the data included in the database, however, does not affect the level of its protection in any way.
For obvious reasons, it is not possible to determine the maximum number of components of a database. It should be clearly emphasized that the owner of a database containing both a dozen or so and several million records will be able to invoke protection based on the provisions of the act. The level of legal protection is therefore not dependent on the “volume” of the collection. A database should be individually accessible to its user, which should be understood as the possibility of gaining access to a specific component without the need to laboriously search the entire collection.
A collection of links is also a database
European case law accepts that a database can be a set of links leading to websites. Both German and Austrian courts have taken this position. In 1999, the German court for the district of Cologne ruled that a collection of links constitutes a protected database. Elements of significant investment were found in the process of searching, compiling, and organizing the links. At the same time, it was recognized that copying 457 out of 501 links and placing them on another website constitutes a violation of the law. Organizing links according to selected criteria was recognized as gathering elements of a database according to a chosen system. The possibility of gaining access to individual elements of the database in such a case does not raise any doubts. It should be assumed that also in light of domestic law, a collection of links can be identified with a database.
Many doubts are raised by the use by entrepreneurs of links (so-called deep links) leading directly to materials located on another website, bypassing its main page. For example, company A’s website contains links to job offers published on company B’s subpages. As a result, the user gains access to the information they are interested in without the need to visit the competitor’s main page (and thus skips, for example, the advertisements that are there). Although in this case, the content of the database itself is not copied, the rulings of EU member state courts are not uniform on this issue. Recently, a precedent-setting ruling was issued by a Danish court in the case of the Danish Press Publishers’ Association versus the website Newsbooster. Ruling on the dispute over the possibility of using this type of deep links (it concerned links to online publications), the court accepted that these practices should be considered a violation of the regulations on database protection.
Without going into a detailed analysis of the ruling, it is only worth emphasizing that it caused justified controversy in the legal community. For comparison, German case law generally assumes that in such cases, there is no violation of the law. Polish courts have not yet spoken on this issue.
There is order, there is a database
For the protection provided under the provisions of the act, it is essential to systematize the future elements of the database. The mere gathering of components, even if it involved significant costs, does not automatically determine the status of a database. It is difficult to accept that unordered data, for example in the form of files chaotically placed on a hard drive, is already a database. This is to prevent a situation where accidentally collected information would be covered by the regime of legal protection reserved for databases. As long as there is no database, other people can basically legally use its future elements. The choice of the method of systematizing individual elements of the database has been left to its creator (e.g., alphabetical, chronological, thematic arrangement). This system, however, should be visible to the average person; the arrangement of elements will be decided by an objective criterion and not the subjective feelings of its creator.
Quantity before quality
The protection of a database is determined by “significant in terms of quantity or quality” investment outlays made for the purpose of preparing, verifying, or presenting its contents. What is hidden under this term? Among specialists, there is no consensus on the understanding of the “significant investment” premise; it is a very fluid criterion. Certainly, not every investment related to creating a database will allow it to be covered by legal protection. The significance of the investment cannot be determined solely by the number of components included in the collection. It may happen that creating a database containing several dozen elements was more laborious and involved higher costs than preparing a database covering many more components. An investment will in no case be the cost of purchasing a ready-made database. The act distinguishes within “significant investments” both quantitative and qualitative investments. Quantitative investments include the remuneration of people who participated in the process of creating the database. Qualitative investments, in turn, will be reflected in the high level of execution of the database, the inclusion of particularly sought-after materials, etc. When assessing the investments made in a database, quantitative investments should be taken into account first, and then attention should be paid to qualitative investments.
To sum up, a database can be considered, among other things, a collection of press advertisements, job offers made available via a website, compilations of sports results, compilations of stock prices, etc.
15 years, but not less…
A database producer within the meaning of the act’s provisions is a natural person, a legal person, or an entity without legal personality that bears the risk of investment outlay during its creation. The producer has the exclusive right to extract and utilize the data included in the database. This mainly covers the possibility of modifying, combining, or updating the collection. These rights can be transferred to another person by contract. Both citizens of Poland and European Union member states can benefit from the protection. The protection period for a database covers 15 years following the year in which the database was created. If during this period the database was made available to the public, its protection period expires at the end of fifteen years following the year in which it was first made available. In a situation where the database is updated, modified – which is the rule in the case of electronic databases – the protection period for the modified version of the database is counted from the beginning.
A license is the basis
The basis for using someone else’s database remains purchasing a license. The act simultaneously allows for the use of a significant part of databases for personal use, scientific and research purposes, and internal security, judicial, and administrative proceedings. Permitted use of a database for personal purposes is possible only in relation to traditional collections – the act explicitly excludes electronic databases from the scope of permitted use.
If you violate it, you will answer for it!
There remains the most important issue, namely what measures are available in the event of a violation of the database producer’s rights. The basic entitlement of the injured party remains a claim to cease violations (e.g., informing the infringer by e-mail that if such practices continue, the matter will end up in court). Subsequent demands are the restoration of the state consistent with the law and the surrender of unlawfully obtained financial benefits, as well as a demand for compensation for the damage caused on general principles, i.e., resulting from the provisions of the Civil Code. Illegal extraction and utilization of part or all of the database content is punishable by a fine. A condition for holding the perpetrator liable is acting with the aim of achieving financial gain.
It seems that the currently existing means of database protection in Polish law should effectively prevent cases of their use by the competition. However, we will have to wait for the first court rulings on this issue.