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But in the Provisions on the Implementation of the International Copyright Treaties there are some different provisions on protection of foreign collections. In article 8 of the provisions it provides that foreign works created by compiling non-protected materials shall be protected in accordance with the provisions of article 14 of the Copyright Law, provided that originality is shown in the selection and arrangement of such materials. Such protection, however, shall not preclude others from using the same materials to create works of compilation.
From the provisions mentioned above one can conclude that prior to amendment the Chinese Copyright Law only protects those domestic collections (databases) composed of original works, which is on the same protection level with Berne Convention’s. This dual criterion on protection of database is not in coordination with the provisions of TRIPs.
The second clause in article 2 of TRIPs provides that the compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself. That is to say, original material, whether it is under protection of copyright or not, shall be protected by copyright only it is in conformity with the said article. The protection level of TRIPs is obviously higher than Berne’s.
In order to realizing coordination with international copyright system China has, in 2001, revised its copyright law and some alterations respecting to collection of works were made. For instance, the word “collection” was replaced by “compilation” and some new requirements towards compilation have been made. Materials or data compiled in a database include works that enjoy copyright and data that do not constitute a work. These alterations put an end to the dual standards on the copyright protection of database produced at home and abroad, which also become more conformable to the requirements of TRIPs.
Originality: a criterion of copyright protection for a database
In the WIPO Copyright Treaty (WCT) adopted on 20 December 1996 there is a clause regarding the copyright of a database. In article 5, compilations of data (databases), it says: compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation. The Diplomatic Conference adopting the Treaty also states in the agreed statements that the scope of protection for compilations of data (databases) under Article 5 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement. Provisions in Chinese copyright law and international conventions concerned explain that it is not all databases but those databases “having originality in the selection or arrangement of its contents” or “selection or arrangement of their contents constitute intellectual creations”, can be protected by copyright law. Namely, only a database satisfies the essential requirements of originality can it be an object protected by copyright law.
Two types of database, different ways of protection
Database, according to its originality as a whole, may be divided into two types: original and non-original ones. Contents in both types of databases may be composed of works and parts of works that enjoy copyright as well as data having no copyright. These two types of databases, whatever they are original as a whole, must be protected by law. Only the ways of protection have their differentia.
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