Compilations, Databases and Tables
Chapter Thirty-Seven
Syllabus topic 1.5, "Subject Matter of Copyrights."
Pages 160 to 162 of 719
In one line
A compilation of facts can be a literary work, but only if the selection or arrangement took skill and judgment; the facts themselves are always free.
In the wording a student can write in an exam: section 2(o) of the Copyright Act, 1957 includes tables and compilations including computer databases within the definition of a literary work, but subsistence still requires originality under section 13(1)(a), and India has no sui generis database right.
Why the law has this at all
Because compilations are valuable and their contents are not owned. A directory, a timetable, a price list and a customer database each cost money to make and each consists entirely of facts that anybody may find out.
The law's answer is to protect the compiling and not the compiled. What the compiler contributes is a selection or an arrangement, and that is what copyright can attach to.
Section 2(o) was amended twice to say so. The Copyright (Amendment) Act, 1994 added computer databases to the clause, so that a database is squarely a literary work in kind, and the earlier amendment of 1984 had added computer programmes and tables.
The two questions
One: is it a literary work in kind? Yes, by section 2(o), if it is a table or a compilation including a computer database. This question is almost never the difficult one.
Two: is it original? This is where compilations are won and lost, and the test is the one in [Originality and the Standard of Skill and Judgment]: the work must originate from an author, not be copied, and be the product of an exercise of skill and judgment which is not so trivial as to be purely mechanical.
What that means for a compilation. A list of everything in an obvious order is close to mechanical. A selection made on a judgment, or an arrangement that took thought, is not.
And WIPO Copyright Treaty article 5 and TRIPS article 10(2) say the same in terms: compilations of data which by reason of the selection or arrangement of their contents constitute intellectual creations are protected as such, and the protection does not extend to the data itself.
The leading Indian illustration
Facts. Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber, 61 (1995) DLT 6, concerned a mail order business which had built a database of its customers over several years. A former employee set up a competing business, and the plaintiff said the customer list he was using was its own.
Held. An interim injunction was granted. A compilation of addresses developed by devoting time, money, labour and skill amounts to a literary work in which copyright subsists. Comparing the two databases, the court found the same order, the same use of commas and full stops, and the same spelling mistakes, which was intrinsic and irrebuttable circumstantial evidence of slavish imitation, and made out a strong prima facie case of infringement.
Compilations, Databases and Tables
Why it matters. It is the Indian starting point for copyright in a database, and it shows how copying is actually proved. It was decided in 1995, before Eastern Book Company v. D.B. Modak, AIR 2008 SC 809, raised the originality threshold, so a court today would ask more searchingly whether the selection or arrangement showed skill and judgment. What survives untouched is the method of proof.
How copying is proved
By the errors. A compiler who copies takes the mistakes with everything else, and a mistake in both works is very hard to explain innocently.
This is why serious compilers plant them. A directory publisher inserts a small number of fictitious entries, and a rival who reproduces them has proved the case against himself. The technique long predates copyright litigation and the courts have accepted its evidential force.
The same reasoning decided V. Govindan v. E.M. Gopalakrishna Kone, AIR 1955 Madras 391, where the trial court found page after page and word after word slavishly copied, errors included, with the same sequence, meanings and arrangement, and a few deliberate differences introduced to cover the copying.
A worked example
Deepa Menon compiles a directory of every registered advocate in Kerala, alphabetically by name, with the enrolment number and the address. She spends a year on it.
Is there copyright? In kind, yes: it is a compilation and so a literary work. In substance, doubtful. The selection is everybody and the arrangement is alphabetical, so neither took skill or judgment beyond the mechanical. On the Indian test after Eastern Book Company she may own nothing.
Change the selection. She lists only advocates who have appeared in reported constitutional matters, arranges them by the court and then by the year of first reported appearance, and adds a short note on each. Both the selection and the arrangement now take judgment, and the compilation is original.
A rival publishes the same list. If he has taken her selection and arrangement he has taken the work. If he has independently made the same selection from the same public material he has taken nothing, however similar the result, and the burden is on her to show copying.
How would she show it? By the errors. If two of her notes contain a mistaken year and the same mistakes appear in his book, Burlington and Govindan both say that is proof.
And could he take the facts? Yes. He may take every enrolment number and every address and publish his own directory in his own arrangement. Facts are not protected, as [What Copyright Does Not Protect] explains.
Compilations, Databases and Tables
What it does NOT mean
It does not mean labour creates copyright. That was the sweat of the brow standard, and India left it in 2007.
It does not mean a database has a right of its own in India. The European Union created a sui generis database right in 1996; India has not, so an Indian compiler who cannot show originality owns nothing at all. [Databases, Text and Data Mining and Scraping] takes up what follows.
And it does not mean that taking part of a compilation is safe. Section 14 protects a substantial part, and a substantial part of a compilation may be a small proportion of it if it is the part the skill went into.
Quick revision
Section 2(o) includes tables and compilations including computer databases in the definition of a literary work.
Originality is the real question, and it is the skill and judgment test.
WIPO Copyright Treaty article 5 and TRIPS article 10(2): compilations which by their selection or arrangement are intellectual creations are protected as such, and the data is not.
Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber, 61 (1995) DLT 6: a customer database is a literary work, and common spelling mistakes prove copying.
India has no sui generis database right.
Test yourself
1. What two questions does a claim to copyright in a compilation raise? Whether it is a literary work in kind, which section 2(o) answers, and whether it is original, which the skill and judgment test answers.
2. How was copying proved in Burlington? By comparing the two databases and finding the same order, the same punctuation and the same spelling mistakes, which the court called intrinsic and irrebuttable circumstantial evidence of slavish imitation.
3. Does India protect a database that took great expense but shows no originality? No. There is no sui generis database right, and copyright requires skill and judgment in the selection or arrangement.
4. What do TRIPS article 10(2) and WIPO Copyright Treaty article 5 protect and what do they not? They protect compilations of data which by their selection or arrangement constitute intellectual creations; they do not protect the data or material itself, and are without prejudice to any copyright in it.
5. Why do directory publishers insert fictitious entries? Because a rival who reproduces them has proved the copying, and mistakes common to two works are very hard to explain innocently.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.