Databases and Australian Copyright Law

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6 Responses

  1. Jack S. says:

    I’m not so sure that Britain is out on their own. This is a European wide law based on a Directive 96/9/EC and implemented in various texts at the local level (note that the 1988 act was modified as the result of a transposition of the directive).

    While it is a sui generis law and not copyright per se, it does accord similar protection which may seem like that of copyright. While I don’t have an opinion what is the best way to handle this legal issue, the database protection is mainly to avoid parasitic and/or anti-competitive behavior.

    That said, at least under French law (which I’m most familiar with and not the British variant), the sui generis version of the database protection is wholly based on the “sweat of the brow” test both quantitatively and qualitatively. If the “sweat” element is shown (money, time, etc.), then infringement of the database specific laws can only be proven by showing that a substantial portion of the database has been taken illicitly (read : mass, quantitatively or qualitatively, downloading of some kind of structured data).

    Copyright law on the other hand, or more appropriately called droit d’auteur still maintains its originality, etc. elements which are applied under a completely separate test. Data appropriation (or misappropriation) is rarely actionable under the droit d’auteur provisions for obvious reasons. The database structure itself generally is, but not very useful in the case of mass misappropriation of data.

  2. Jacqueline Lipton says:

    Thanks, Jack, for your comment. I suppose I should have been clearer in my post that I was purposely not commenting about the Database Directive (about which I’ve written fairly extensively in the past). But of course, Australia will now be at odds with much of the rest of the world because Australia does not have a sui generis database protection law unlike the E.U. countries and it apparently does not have a robust misappropriation (INS type) law either. But of course all E.U. countries can take advantage of the Database Directive provisions as you right point out, regardless of the copyrightability of databases in their particular state laws. I’m intrigued about how much this is actually happening in practice since the 2005 report of the EU Parliament that suggested the Directive may not be all that effective/necessary in practice. Do you have any thoughts?

  3. Jack S. says:

    Unfortunately I do not have my IP Code book in front of me, nor access to the research databases, so I’ll have to go from memory and gut feel.

    In France, there has been a modest amount of caselaw referencing the database provisions specifically. I think it’s useful to the practicing lawyer in that they do not have to seek protection via the sometimes murky unfair competition rules which in France only comes via tort claims under civil code articles 1382 and 1383 (and mountains of caselaw). This is perhaps why a large number of publishers in the 2005 study wanted to maintain the sui generis protection as is. It gives them relatively straightforward means.

    If someone is appropriating data from your database en mass it is relatively easy to legally stop the practice either via the courts or through amicable means such as a friendly cease and desist letter to the offending party, specifically citing the sections of the IP code. In practice I have found this to be quite useful as settlement comes quickly. Under tort law, the adverse party might be more willing to take his chances and fight it out.

    Of course other issues come up between the type of “infringer”. Is there a contractual relationship and the consumer has gone outside the bounds of the use license? This could simply be a breach of K case. Is it an anynomous entity who is taking bulk downloads of data which is publicly acessible where the the database laws are more appropriate?

    Would unfair competition law be more appropriate? Probably since equating notions of copyright or droit d’auteur to otherwise unoriginal databases in my opinion is not logical. The database provisions resemble more a codification of unfair competition as it’s really misappropriation of “manufactured” commercial goods, not of an authors work.

    On the positive side, the directive and implementations also maintain protections for education uses, derivative works, etc. This part of IP doctrine actually lends itself well to unoriginal database compilations.

    A particular anecdote which comes to mind is a real estate research site called which allows agents to post advertisements and another site called which uses data from seloger to track each property with respect to how long has been on the market and any price evolution. Extremely useful to potential home buyers or renters. It did get me thinking however as to petitcailloux’s rights in using the data for such a purpose. They clearly have not asked for permission given the opague nature of the site and who its owners are. And petitcailloux most definitely takes a substantial portion of the database in terms of shear numbers.

    Maybe seloger doesn’t care, or their counsel has said they don’t have a case (if it actually bothers them).

    a more twisted version could make for a good EU IP law exam (or a comparative law analysis for is there an action? under which law(s) and what are the defenses..blah blah).

  4. Jacqueline Lipton says:

    Thanks for that – extremely interesting. I wasn’t familiar with the French position in particular.

  5. Help says:


    would anyone be kind enough and help me figure out how to compare and evaluate the protection of databases under the Australian Copyright Act, under United States copyright law, and under the Community Database Directive?

    Thank you,