Protection of databases in the digital world: USA, European Union and India

Law of Intellectual Property and Information Technology · Unit IV · Topic 10 of 12 · 7 min read

Why databases fit poorly into copyright, Feist and the US fall-back on contract, hot news and anti-hacking law, the EU Database Directive's sui generis right as narrowed by British Horseracing Board, the Indian move from sweat of the brow (Burlington) to modicum of creativity (Eastern Book Co.), and whether India needs a database right.

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On this page

1. What a database is and why it is a problem
2. United States
3. European Union: the Database Directive (96/9/EC)
4. India
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. A database is valuable because it is complete and accurate, and that is the product of effort, not creativity. Copyright protects only the original selection or arrangement. The US has refused anything more and relies on contract and other laws; the EU created a separate sui generis right in 1996 to protect investment; India protects databases as literary works and, since Eastern Book Co. (2007), requires a modicum of creativity. Most comparative questions turn on whether the EU model has worked and whether India should copy it.

1. What a database is and why it is a problem

The EU Database Directive defines a 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. Examples are directories, case law reporters, stock and sports data, catalogues, customer lists, and the data sets used to train AI.

The difficulty is that copyright does not protect facts or information, only original expression. A complete telephone directory, a fixture list or a register of prices has no creative selection: the more complete it is, the less choice was made. Yet it may have cost a great deal to compile, and a rival can copy it in seconds once it is online. The question is whether law should protect investment as such, and at what cost to access to information.

2. United States

Copyright after Feist

Before 1991 some US courts protected compilations on the “sweat of the brow” (for example Jeweler’s Circular Publishing v. Keystone, 2nd Cir., 1922). In Feist Publications v. Rural Telephone Service (1991), the Supreme Court held that the white pages of a telephone directory were not protected. Originality is a constitutional requirement and means independent creation plus a modicum of creativity; facts are not original; a compilation is protected only in its original selection, coordination or arrangement, and that protection is thin. Copying the facts is lawful.

Later cases applied this: Matthew Bender v. West Publishing (2nd Cir., 1998) held that West’s page numbering and corrections in law reports were not protected.

Other routes

Hot news misappropriation: International News Service v. Associated Press (1918) restrained a rival from taking news while it was fresh. NBA v. Motorola (2nd Cir., 1997) confined it to time-sensitive information where the defendant free-rides on costly gathering, and Barclays Capital v. Theflyonthewall.com (2nd Cir., 2011) held the claim pre-empted on its facts.
Contract: ProCD v. Zeidenberg (7th Cir., 1996) enforced a shrink-wrap licence forbidding commercial use of a telephone database on CD-ROM, though the data was not protected by copyright.
Anti-hacking and trespass: the Computer Fraud and Abuse Act and trespass to chattels (eBay v. Bidder’s Edge, N.D. Cal., 2000). In hiQ Labs v. LinkedIn (9th Cir., 2022) scraping of publicly accessible profiles was held unlikely to violate the CFAA, following the narrow reading of the Act in Van Buren v. United States (2021).
Failed legislation: bills for database protection were introduced in Congress from 1996 onwards and none passed; the US also opposed a WIPO database treaty at the 1996 Diplomatic Conference.

3. European Union: the Database Directive (96/9/EC)

The Directive creates two layers.

Copyright (Article 3): databases which by reason of the selection or arrangement of their contents constitute the author’s own intellectual creation. Football Dataco v. Yahoo! (CJEU, 2012) held that skill and labour in creating the data are irrelevant; only free and creative choices in selection or arrangement count.
Sui generis right (Article 7): the maker of a database who shows a qualitatively or quantitatively substantial investment in obtaining, verifying or presenting the contents may prevent extraction or re-utilisation of the whole or a substantial part, and repeated and systematic extraction of insubstantial parts. The term is fifteen years (Article 10), and a substantial new investment starts a new term. Exceptions are narrow (private extraction from non-electronic databases, teaching and research illustration, public security). The right is available only to makers from the EU and from countries giving reciprocal protection (Article 11).

The CJEU narrows the right

British Horseracing Board v. William Hill (CJEU, 2004) and the Fixtures Marketing cases (2004): investment in creating the data (deciding race runners, drawing up fixture lists) does not count; only investment in obtaining existing data, verifying and presenting it. Sports bodies, the main early claimants, largely lost protection for their fixture lists.
Innoweb v. Wegener (CJEU, 2013): a meta-search engine that searched a car-sales database in real time for users re-utilised a substantial part.
Ryanair v. PR Aviation (CJEU, 2015): where a database is not protected by either right, the Directive does not prevent the maker from restricting use by contract.
CV-Online Latvia v. Melons (CJEU, 2021): extraction by a specialised search engine infringes only if it risks the maker’s ability to recoup its investment.

The European Commission’s evaluations (2005, 2018) found no clear evidence that the sui generis right had increased the production of databases in Europe. The Data Act (2023) provides that the right does not apply to data obtained from or generated by connected products, to prevent it from blocking access to such data.

4. India

Statute: after the amendments of the 1990s, section 2(o) includes “compilations including computer databases” in literary works. There is no sui generis right.
Sweat of the brow era: Govindan v. Gopalakrishna Kone (Madras High Court, 1955) protected compilations for labour; Burlington Home Shopping v. Rajnish Chibber (Delhi High Court, 1995) held a compiled customer list to be a literary work and restrained a former employee from using it; Diljeet Titus v. Alfred Adebare (Delhi High Court, 2006) protected a law firm’s client data against departing lawyers, in copyright and in confidence.
Modicum of creativity: in Eastern Book Co. v. D.B. Modak, 2007 INSC 1266, the Supreme Court required skill and judgment with a minimal degree of creativity, rejecting pure labour. Later Delhi High Court decisions, such as Navigators Logistics v. Kashif Qureshi (2018), have refused protection to customer databases where the plaintiff could not show any skill or judgment in compiling them.
Other protection: confidentiality by contract and equity for non-public databases; sections 43(b) and 66 of the IT Act against unauthorised downloading or extraction of data from a computer system; technological measures under section 65A where the database is a copyright work; and contractual terms of use for online databases.
Personal data: where a database contains personal data, the Digital Personal Data Protection Act, 2023 governs its collection and use, and individuals may demand correction or erasure. The owner’s interest in the database must yield to those rights.

Point	USA	EU	India
Copyright standard	Modicum of creativity (Feist)	Author’s own intellectual creation	Skill, judgment and minimal creativity (EBC)
Investment protected as such	No	Yes, 15-year sui generis right	No
Fall-back	Contract, hot news, CFAA	Contract where no right (Ryanair)	Contract, confidence, IT Act s.43

Debate: should India enact a database right? For: Indian IT and data businesses invest heavily and need protection against free-riding, and Indian makers do not get the EU right because India offers no reciprocity. Against: the EU’s own evaluations found little benefit; a right in data would raise the cost of research, journalism, AI development and public access; and contract, confidence and the IT Act already deal with the worst cases. TRIPS Article 10(2) requires protection only for compilations that are intellectual creations by reason of selection or arrangement, and excludes the data themselves. Policy discussion in India, including the 2020 expert committee report on non-personal data, has favoured access and data sharing over exclusive rights.

How this is examined

Likely long questions: “Discuss the protection of databases in the digital world with reference to the position in the USA, EU and India.” “Examine the sui generis right under the EU Database Directive. Should India adopt it?” “‘Sweat of the brow’ or ‘modicum of creativity’: discuss the originality of compilations.”

Likely short notes: Feist; sui generis database right; British Horseracing Board v. William Hill; extraction and re-utilisation; Burlington Home Shopping; hot news doctrine.