Legal Protection of Databases in the United States

Copyright Protection of Databases

Ordinary compilations of data may not possess the requisite level of creativity to be copyrightable at any level of abstraction. According to the jurisprudence, the degree of copyright protection for factual databases is thin and covers only the selection and arrangement.

One of the problems is that the idea/expression or fact/expression dichotomy limit which portions of the work receive protection only expressive portions are protected. And, in the case of other non-copyrighted works, any portion of the work that is a part of the public domain may not be protected. Similarly, protection from otherwise infringing activity of copyrightable portions of the work may be denied under the doctrine of Fair Use.

Trade Secrets, Contracts and Patents as database protection

Other potential forms of database protection would include Trade Secrets, Contracts and
Patents. Trade secret protection is limited to databases that convey a competitive advantage. Although it would be possible to license access to the database as a way of conveying rights to such competitive advantage, trade secret protection may be undermined where there are too many licensees (i.e., the database is no longer secret or competitive) or where the database itself is the product consumed.

In the case of the Contract protection. it only applies to parties to the contract, not to third party “hackers.”

Anti-Circumvention (A-C)

Only operates with works that are protected if the database is not copyrightable because it lacks any originality, then A-C does not operate.
Only erects a barrier to entry. It does not protect each copyrightable element of the work once someone has “breached the digital wall.”
§1201 carves out a number of exceptions to the protection. Most notably, §1201(c) states that many of the contours of copyright law (including fair use) are left intact.
According to Chamberlain, A-C liability is not strict in that it applies only when the defendant subsequently infringes the work following breach for instance, A- C does not apply if the defendant is protected by fair use.
According to Lexmark, A-C protects against only unauthorized access to the work; it does not protect against use of a product containing the copyrighted work.
Although a minimal requirement, A-C only operates if the TPM “effectively controls access.”

Misappropriation

Subject matter limitation or limitation by additional elements to avoid preemption by patent and copyright law.
Time-sensitivity.
Direct competition.
Reduce incentive.
Not available in many jurisdictions.
Unpredictable, variable, and unreliable.

See also

• Copyright Protection
• Bundle of Rights
• Fair Use
• Infringement
• Software Infringement
• Anti-Circumvention
• Misappropriation
• International News Service v. Associated Press

References and Further Reading

• United States Code Title 17
• Bellsouth Advertising v. Donnelly 999 F.2d 1436 (11th Cir. 1993)
• CCC Information Services v. Maclean Hunter Market Reports 44 F.3rd 61 (2nd Cir. 1994)
• CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999)
• Chamberlain v. Skylink 381 F.3d 1178 (Fed. Cir. 2004)
• Chicago Board of Trade v. Dow Jones and Company 98 Ill. 2d 109 (1983)
• Computer Associates International v. Altai, Inc. 982 F.2d 693 (2nd Cir. 1992)
• Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)
• Gilmore v. Sammons, 269 S.W. 861, 863 (1925)
• International News Service v. Associated Press 248 U.S. 215 (1918)
• Joyce, C. et al. Copyright Law (6th Edition). Bender & Company, Inc. 2003
• Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc., 945 F. 2d 509 (2d Cir. 1991)
• Lexmark v. Static Control 387 F.3d 522 (6th Cir. 2004)
• Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2nd Cir. 1998)
• McCord Co. v. Plotnick 108 CA.2d 392 (1951)
• Mercury Records Productions Inc v. Economic Consultants. Inc. 64 Wis. 2d 163 (1974)
• National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd Cir. 1997)
• Nichols v. Universal Pictures Corporation 45 F.2d 119 (2nd Cir. 1930)
• O.P. Solutions, Inc. v. Intellectual Property Network Ltd. 52 U.S.P.Q.2D (BNA) 1818 (S.D.N.Y. 2001)
• ProCD v. Zeidenberg 86 F.3d 1447 (1996)
• Universal City Studios v. Corley 273 F.3d 429 (2nd Cir. 2001)
• US Sporting Products v. Johnny Stewart Game Calls 865 S.W.2d 214 (1993)
• Warren Publishing v. Microdos 115 F.3d 1509 (11th Cir. 1997)
• West Publishing Company v. Mead Data Central 799 F.2d 1219 (8th Cir. 1986)