Data And Databases: Copyright And Other Legal Issues

Tuesday 16 September 2014 @ 11.00 a.m. | IP & Media

Last week, SmartCompany reported that “[i]nnovation driven by the use of data contributed the equivalent of the entire retail sector to the Australian economy in 2013.”  According to the report on research published by PwC, around $67 billion in new value was added to the Australian economy last year.

PwC innovation partner Trent Lund told SmartCompany that all kinds of data are being increasingly used to drive growth, from traditional “Big Data” and “little data”, which could “be as simple as data that small businesses already have access to, such as through their accounting software or how many people are visiting their website”.

As companies are increasingly realising the value of collecting and using data, questions about rights and privacy inevitably arise.  Companies may have concerns about what data they can gather in what jurisdictions, and whether the work they put into their databases will be protected under intellectual property laws.  Customers will also have questions about security and who may have access to their personal information.

Databases and Intellectual Property

DLA Piper have just released their second edition of their handbook “IP Rights in Data”.  The Handbook gives an overview of the various intellectual property rights relating to data and databases around the world.  DLA Piper says:

“laws relating to IP protection of data and databases vary significantly among jurisdictions. This naturally poses a challenge to any business looking to protect and exploit data on a cross-border basis.”

In Australia, databases may be protected as a “literary work” under the Copyright Act 1968 (Cth).

This differs from law in the European Union, where “databases” are specifically protected under the EU Database Directive 96/9.

In the United States, databases are considered to be “compilations.”  These differences in classification can have a major impact on whether or not a specific type of database is protected.

In Australia, where databases can be “literary work”, it is the effort or work put in to creating the database that will be the source of protection, rather than the actual data itself.  Copyright will only subsist in the “non-trivial” or “non-obvious” form of the compilation (so alphabetically arranged databases would probably not qualify).   The European Union, which specifically defines “database”, has broader protections which also protect databases in which an investment has been made in the collection of the data.

Data, Privacy and Security

As well as being aware of whether their databases will be protected, businesses also have to ensure that they are abiding by the necessary personal data protection and privacy laws in each jurisdiction.  In Australia, data collection may be affected by the Privacy Act 1988 (Cth), which requires private and Federal public entites to abide by the Australian Privacy Principles.  DLA Piper highlighted potential fines of up to $1.7 million for serious or repeated breaches.

The recent heated debate that has erupted over the Government’s plan to collect and store “metadata” also illustrates the importance of understanding exactly what it is you plan to collect and store.

Companies should also be concerned about security when it comes to data storage.  Earlier this year, the Australian Government’s mygov website was found to be “exposing millions of Australians’ personal information by leaving serious security flaws unchecked”.  The recent iCloud leaks have also demonstrated the need to ensure that data stored in the cloud is protected as strongly as possible.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.


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