Developing computerised databases, particularly ones connected to the Internet, is now an important business. Changes in Irish law will improve the legal protection available to database owners, which should make the information easier to exploit and therefore more valuable. At the same time, however, other changes may make the creation of those databases more difficult and so more expensive.
One particularly useful form of database is the newspaper archive. Until recently, back issues of newspapers were kept in dusty files. Now many newspapers' websites allow access to back issues of their online editions. Some, like The Irish Times, make this facility freely available. Others, such as the New York Times, charge for the information, and this has led to problems with freelance authors.
The New York Times started making its back editions available on the Nexis searchable online service and on CD-Rom. Some authors sued, claiming that while they had agreed to the initial publication they had never agreed that their articles would be available on these databases. Last year, in Tasini -v- The New York Times, this issue came before the US Federal Court of Appeals. The court held that the authors were correct and that if the newspaper wanted to place articles written for its paper edition in an electronic database then the newspaper would have to conclude new agreements with the authors.
It is quite possible that the Irish courts would come to a similar conclusion and the European Proposal for a Directive to Harmonise Copyright Law may grant authors similar rights. In any event, section 38(1) of The Copy- right Bill 1999, which is now before the Oireachtas, will explicitly grant authors the right to control how their works are stored. Once enacted this might enable authors to object if their works are stored in a database.
A particularly valuable type of database is that which contains personal information, such as the spending habits of individuals. Some such databases have legitimate commercial purposes, such as tracking and targeting consumer advertising. Others may be more nefarious. For example, one online database claims that it will supply an unlisted US phone number for $65.
The creation of any database of personal information will be limited by the provisions of the European Data Protection Directive. This directive was supposed to have been implemented into Irish law by late October 1998. Once this is done it will substantially amend and reform the existing Data Protection Act 1988. Although it will significantly increase the rights of individuals and the duties of database owners, it will also permit free transfer of data between member-states of the European Union. It may limit the export of personal data to countries such as the US.
While these changes are in prospect, once The Copyright Bill 1999 is enacted it will significantly improve the protections available to database owners. Irish databases may receive some protection from copyright law under the existing Copyright Act 1963 but the extent of this protection is far from clear.
The difficulties that this may cause for database owners is shown by the American case of ProCD-v-Zeidenburg, in which the plaintiffs manufactured a set of CD-Roms which contained a database of phone numbers for the US. The defendant bought a copy of this and connected it to the Internet, selling access to its contents in direct competition with the plaintiffs.
The plaintiffs sued and won, but they were unable to sue for what amounted to the theft of their database. Instead, they had to sue for illegal use of the computer program which enabled the contents of the database to be accessed. A reform of the American law has improved the protection of databases there and The Copy-right Bill 1999 will introduce similar reforms in Ireland. Section 17(2) of the Bill explicitly states that "Copyright subsists . . . in . . . original databases". This means that the owners of a database will be able to control how it is copied (and stored), made available to the public (including placing it on the Internet, renting it, lending it or broadcasting it) and adapted (including translating, rearranging or altering it).
Equally significantly, section 303 of the Bill creates a new property right, called the "database right". This will enable the owner of a database to control how all or a substantial part of it is extracted or re-utilised, Internet distribution being one example.
The Copyright Bill 1999, also contains significant limitations on the rights of owners of databases. Section 310(2) limits the ability of owners to control how small or insubstantial parts of databases are extracted. Sections 312 and 313 will permit the "fair dealing" extraction of the contents of a database where it is done for the purposes of research, private study or education.
The ability of owners to "unreasonably discriminate" between prospective users of their databases will also be limited by the bill, which will allow for appeals to the controller of patents and designs. These last provisions must be read in the light of the decision of the European Court of Justice in Magill-v-RTE, which held that RTE could not use its control of its programme schedule to give its publication, the RTE Guide, an unfair advantage over prospective competitors such as Magill.
These new protections are not being created by the Oireachtas in isolation. They are pursuant to the European Union's Database Directive and the World Intellectual Property Organisation's Database Treaty. One of the striking features of the Bill is that much of it is determined by international and European law, leaving the Oireachtas comparatively little discretion in relation to its contents.
Denis Kelleher BL (deniskelleher@ireland.com) is a practising barrister and co-author with Karen Murray BL of IT Law in the European Union (Sweet & Maxwell: London), 1999.