Database Rights: About This Guidance

Database rights
About this guidance

This guidance note has been prepared to assist students of the University who are depositing a
thesis in the Oxford University Research Archive (ORA). It is intended to be read alongside the
guidance note for including third party copyright works in your thesis, which is available here1.
The information in this guidance note is inevitably general in nature and provides only a selective
summary of a complex area of law. This note should not, therefore, be considered or relied on as
legal advice.
Definition of database
For the purposes of this guidance note, the expression “database” is defined by law as:
a collection of independent works, data or other materials which–
(a) are arranged in a systematic or methodical way, and
(b) are individually accessible by electronic or other means.
It should be noted that the definition is not restricted to electronic databases: a printed telephone
directory satisfies the definition.
A compilation that does not satisfy the definition may still be protected by copyright as a literary
work. You can read more information about identifying copyright works generally here2.
Forms of protection
A database falling within the definition above may be protected:
• as a literary copyright work (see section 1 below);
• by a separate database right (see section 2 below); or
• both as a literary copyright work and by a separate database right.
The two forms of protection arise in different circumstances and offer different forms of protection.
1. Copyright protection
While database copyright is a form of literary copyright, the circumstances in which it arises are
slightly different from other forms of literary copyright. This guidance note only considers the special
Page 1 of 4
1
http://www.bodleian.ox.ac.uk/__data/assets/pdf_file/0010/178228/Third-party-copyright-in-theses.pdf
2
http://www.bodleian.ox.ac.uk/__data/assets/pdf_file/0009/178227/Identifying-relevant-copyright-works.pdf
characteristics of database copyright. You can read more about literary copyright works in general
here2.
Scope of protection
Database copyright protects the structure of a database and not the contents. That is, it recognises
the selection and arrangement of the contents, rather than the creation of the contents, and
protects the recorded form of the database.
Although database copyright does not protect the contents of a database, an individual item of the
contents may be separately protected if it qualifies as a copyright work in its own right. For example,
in the case of a database of musical manuscripts or photographs, each item in the database may
qualify for its own copyright protection.
Originality of expression
A work falling within the legal definition of a database will only be protected by database copyright if
it is an original work. Although other forms of literary copyright must be original, the test is higher
for database copyright. A work will qualify for database copyright:
only if, by reason of the selection and arrangement of the contents of the database the
database constitutes the author’s own intellectual creation.
As explained above, this is not about the intellectual effort and skill of creating the contents, but
rather the choices made by the author in relation to the selection and arrangement of the contents.
The key difference between database copyright and other literary copyright works is the reference
to “intellectual creation”. The author’s choices must demonstrate not only sufficient skill, labour and
judgment, but also result in an original expression of the maker’s creativity.
This test can be difficult to apply in practice. If you are in doubt, we recommend that you exercise
caution and treat a database as a protected work.
Further information
You can read more about the nature of copyright, other forms of copyright, whether a work qualifies
for copyright protection in the UK, the duration of copyright, and the concepts of authorship and
ownership in relation to copyright works here2.
1. Separate database protection

The separate database right exists independently of copyright. You may see it more commonly
referred to as the sui generis database right.
Scope of protection
Unlike database copyright, the separate database right protects the contents of a database. This
restricts the extraction or re-utilisation of the whole or a substantial part of the contents without the
owner’s permission.
Page 2 of 4
1
2
Extraction means “the permanent or temporary transfer of all or a substantial part of the contents of
a database to another medium by any means or in any form”, and can be broadly equated with the
restriction on copying in copyright law. Re-utilisation, “in relation to any contents of a database,
means making those contents available to the public by any means”.
It is important to understand that:
• there is no requirement to copy the form of the database to infringe the separate database
right: the right would be infringed by taking the contents and re-arranging them;
• a series of insubstantial extractions and re-utilisations of the contents of the database may
amount to the extraction and re-utilisation of a substantial part; and
• extraction and re-utilisation may be quantitatively and/or qualitatively substantial.
Protected works
The concept of originality does not apply to the separate database right. Instead, a database will
only be protected by the separate database right if there has been “substantial investment in
obtaining, verifying or presenting the contents of the database”. Like database copyright, this is not
about the effort and resources used to create the contents, but rather the effort and resources used
to find independently created materials and to collect them into a database.
For the avoidance of doubt, the existence of the separate database right is not dependent on the
contents being protected by copyright.
Qualifying works
A work will only qualify for the separate database right if the author of the database is based in the
European Economic Area.
Duration
The separate database right lasts for 15 years from:
• the end of the calendar year in which the making of the database was completed; or
• if during that period the database is made available to the public, the end of the calendar year in
which the database was made available to the public.
This would appear to offer a shorter period of protection than the 70 years for database copyright,
but any substantial change to the database (provided it amounts to a substantial new investment)
would qualify the new version for its own term of protection. Accordingly, where a database is
continually developed, it could attract indefinite protection.
Legal exception
The separate database right will not be infringed by your extraction and re-utilisation of a substantial
part of the contents of a database where:
Page 3 of 4
1
2
• the database has been made available to the public;
• the extraction and re-utilisation amounts to “fair dealing”;
• you are otherwise a lawful user of the database;
• it is extracted for the purpose of illustration for teaching or research and not for any commercial
purpose; and
• the source of the contents is indicated.
Some of these concepts are similar to those for copyright and you can read more about them here2.
Checklist
• Is the work a database?
• If the work is a database, is it an original work that qualifies for copyright protection in the UK? If
so, database copyright will protect the structure of the database.
• If the work is a database, did the author make a substantial investment in obtaining, verifying or
presenting the contents and is the author based in the European Economic Area? If so, the
separate database right will protect the database against the extraction or re-utilisation of all or
a substantial part of the contents.
• If the work is not a database, is it protected as another form of literary copyright?
Further assistance
If you have any comments or questions about this guidance note, please contact
ora@bodleian.ox.ac.uk. The University is not in a position to provide you with legal advice, but it will
try to answer your questions where possible.
Page 4 of 4
1
2

Database Rights: About This Guidance

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Database Rights: About This Guidance

Uploaded by

Copyright:

Available Formats

Database rights

About this guidance

a collection of independent works, data or other materials which–

(a) are arranged in a systematic or methodical way, and

(b) are individually accessible by electronic or other means.

• as a literary copyright work (see section 1 below);

• by a separate database right (see section 2 below); or

• both as a literary copyright work and by a separate database right.

1. Separate database protection

It is important to understand that:

• extraction and re-utilisation may be quantitatively and/or qualitatively substantial.

The separate database right lasts for 15 years from:

• the extraction and re-utilisation amounts to “fair dealing”;

• you are otherwise a lawful user of the database;

• the source of the contents is indicated.

You might also like