Discuss the legal protection given to databases under the Maltese Copyright Act 2000.

A computer database is a collection of information stored on computer media. The range of things, which may be included in a database, is vast and enormous; “the information in a database may be a list of clients and their addresses or a full text of various documents or a set of co-ordinates relating to three-dimensional building structure. The information contained in the database may, itself, be confidential and protected by the law of breach of confidence. When one looks at a computer database and considers the work it represents, for example, a printed; list of names and addresses, a printed set of documents or a drawing of a building. Those works are protected by copyright as literary or artistic works and it does not matter if the work is never produced on paper and only ever exists on computer storage media.”

“The appropriate form of copyright depends on the status of the database, for example, data representing sounds may be stored in a computer file which, when accessed by an appropriate computer program will be used to determine the actual sounds produced. A database containing musical information will be considered to be a musical work or could even be classified as a sound recording. It does not matter whether the information is recorded on magnetic media, compact disc, or any form of storage. If the definition of writing includes code, the recording does not have to be instantly recognizable as the work it represents, and a process involving conversion does not defeat copyright protection.”

Usually a hardcopy (a printout) of the information contained in the database exists. If the hardcopy is the first to come into existence (and the database was created using the hardcopy) then anyone copying the database will infringe the copyright in the hardcopy. On the other hand, if the database existed first, making a copy of the hardcopy will infringe the copyright in the database. Copyright will subsist in the first to be created whether it is the computer database or the written or printed copy.

Art.2 of the Maltese Copyright Act 2000, defines ‘database’ as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means without it being necessary for these materials to have been physically stored in an organized manner but does not extend to computer programs used in the making or operation of a database accessible by electronic means comprised within the term ‘computer program’.” Therefore, art.2 protects the database as such, the ‘expression’ of the information contained in it, whether it be a list of names or a ...

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Art.3 (1) establishes that a database is subject to copyright protection under Maltese law as are other artistic, audiovisual, literary and musical works.

Art.3 (4)– “A database shall not be eligible for copyright unless by reason of the selection or arrangement of its contents, it constitutes the author’s intellectual creation. Moreover the copyright conferred to a database shall not extend to its contents and shall be without prejudice to any rights subsisting in such contents themselves.” From this article it is clear that what the Act is protecting is the ‘author’s intellectual creation’ not the contents themselves. The author’s intellectual creation is the way he arranged the contents, what he did for example with the list of names he used in the database. The names themselves are not protected under this article but it is the author’s expression that is protected; what he did with the list of names but not the names as such. Therefore the work must have an ‘original character’ and originate from the author’s intellectual efforts because copyright exists in the expression of the idea and not in the idea itself.

Art.7 states that, “copyright in an audiovisual work, a database, a literary, musical or artistic work shall be the exclusive right to authorize or prohibit the doing in Malta in respect of the protected material in its totality or substantial part thereof, either in its original form or in any form recognizably derived from the original of any of the following:

the direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part;
the rental and lending;
the distribution;
the translation in other languages including different computer languages;
the adaptation, the arrangement and any other alteration and the reproduction, distribution, communication, display or performance to the public of the results thereof;
the broadcasting or rebroadcasting or the communication to the public or cable retransmission;
display or performance to the public;

The purpose of this article is to prohibit or authorize at the author’s discretion any of the list (art.7 a-g). No one can for example, reproduce, adapt, or display the work or any part of it without the author’s permission. The author has a moral right to protect his creation, his work and no one should be given the opportunity to exploit the author’s work without first paying for such right, e.g. by becoming a licensed used of the database.

Art.9(a-t) is a list of the exceptions to the author’s right to authorize or to prohibit the use of his work. Not all of them are very relevant to databases so I will mention only the very important which apply to databases as well.

Art.9 (a) states that, if for example what is found in the database is used “by way of fair dealing for research, private use, criticism or review, or the reporting of current events”, then there would be no infringement of copyright as long as the author of the work is acknowledged and this done within the limits as mentioned in this article, i.e. it is really done for purposes of research, private use, etc.

Art.9 (g) authorizes the author’s work to be used for teaching purposes and where there was no direct or indirect gain involved.

Art.9 (n) provides that, where the work is going to be communicated by a non-profit making club, to the public, in a place where no admission fee is charged for this communication then the author cannot prohibit his work from being shared with others.

Art.9 (o) provides that, an author’s original work can be used for the purpose of a judicial proceeding or of any report of any such proceeding.

Art.9 (s) allows the licensed user to perform any “normally necessary” acts, “in order that the licensed user obtains access to the contents of the database and normal use thereof, in respect of the whole or part of the database which the user is licensed to use”.

Art.9 (t) allows “any use which is necessary for the purposes of public security or for the purposes of an administrative procedure, to the extent justified by that purpose.”

So, as can be seen, art.9 of the Copyright Act provides us with an exhaustive list of what exceptions are allowed to art.7 of the same Act, some of them apply directly to databases, however, databases are covered by the whole list (a-t) as such.

Art.11(1) provides that, “in the case of computer programs and databases, where a work is made in the course of the author’s employment, in the execution of his duties or following the instructions given by the employer, the economic rights conferred by copyright shall be deemed to be transferred to the author’s employer, subject to any agreement between the parties excluding or limiting such transfer.” This article provides with another sort of ‘exception’ to the author’s right of copyright. If the work was carried out as part of the author’s everyday job, or at the instructions of his employer, then his employer is the rightful owner of that computer program or of the database, so any monetary profit gained from such work shall belong to the employer, unless otherwise agreed by the employer and the employee.

Reference;

Carlos M Correa, Intellectual Property Rights, The WTO and Developing Countries, Zed Books Ltd., 2000
Blackstone’s Statutes on Intellectual Property, edited by Andrew Christie and Stephen Gare, Blackstone Press, 5th ed., 2001