Databases, Text and Data Mining and Scraping

In one line

India protects a database only as a compilation, only for the skill and judgment in it, and has no exception for mining it, so scraping is answered by contract, by computer misuse law and by ordinary copyright.

In the wording a student can write in an exam: a database is protected in India as a compilation within the definition of a literary work in section 2(o) of the Copyright Act, 1957, subject to the standard of originality laid down in Eastern Book Company v. D.B. Modak, AIR 2008 SC 809; 2008 (1) SCC 1, and India has no sui generis database right and no text and data mining exception in section 52.

Why the question is difficult

Because the value is in the contents and the law protects the arrangement. A directory is valuable because of the addresses in it, and copyright protects the selection and arrangement, not the facts.

Because facts are not authored. A telephone number is not created by anybody.

And because collecting them costs a great deal. The investment argument is strong and copyright is not designed to answer it.

What Indian law protects

Section 2(o). A literary work "includes computer programmes, tables and compilations including computer databases".

So a database is a literary work if it is a compilation. That much is express.

But originality still applies. In Eastern Book Company v. D.B. Modak, AIR 2008 SC 809; 2008 (1) SCC 1, the Supreme Court held that a derivative work is original only if its production required skill, labour and capital of a kind that is more than trivial, adopting the Canadian standard of skill and judgment rather than the English sweat of the brow or the American modicum of creativity.

Which cuts down the protection of a database sharply. A comprehensive alphabetical list involves no judgment in its selection or arrangement, and on the skill and judgment standard it is protected weakly or not at all.

Compare the earlier position. In Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber, 61 (1995) DLT 6; 1995 (35) DRJ 335, the Delhi High Court granted an interim injunction over a customer database, holding that a compilation of addresses developed by devoting time, money, labour and skill amounts to a literary work in which copyright subsists. That is sweat of the brow reasoning, and it must now be read subject to Eastern Book Company.

And the copying was proved by the errors. The two databases shared the same order, the same use of commas and full stops and even the same spelling mistakes, which the court treated as intrinsic circumstantial evidence of slavish imitation. That is how database copying is proved.