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Copyright protection to original database
According to the copyright law of China, database, only having originality, can be considered as a compilation and be protected. But how do we ascertain originality of a database? The answer to this question is that the originality is not reflected from its contents, namely the works and parts of works compiled, for they are not created by compiler; so the originality can only be shown from the selection or arrangement of data of contents. This type of database original in selection or arrangement of content may be considered as a work of compilation and protected by copyright law. Conversely, a database will not be protected by copyright law though they are compiled by works that are original and will also not be protected by copyright law because they have no originality in selection and arrangement in the contents.
Civil protection to the non-original database
In practice there are such kinds of databases which are composed of works protected by copyright law and factual material or data that is non-intellectual creations, such as telephone book, timetable, various business list or directory, etc., even though non-originality in contents on selection and arrangement they are, but compiler has devoted arduous work to and invested much capital in collecting, sorting out and arranging these factual materials and data. Does database non-original be protected by copyright law? the answer is negative. In American legal history, this kind of compilation (database) was once protected by court in accordance with the principle of “sweat of the brow” or “industrious collection” originating from the judicial case, “Jeweller’s Circular Publishing Co. v. Kenstone Publishing Co.”13In this case the judge in Second Circuit Court cites an English precedent, Walters v. Lane 14 and holds that compilations, unable to accommodate the originality requirement, were protected by their “sweat of the brow” and an author of a compilation of facts, “produce by his labor a meritorious composition, in which he may obtain a copyright, and thus obtain the exclusive right of multiplying copies of his works.” But in the legislation afterwards these principles have faded gradually from the American copyright law since the case, Feist Publishing v. Rural Telephone Service Co, has been decided by the Supreme Court of the United States in 1991.
Since the database non-original can not be protected by copyright law and it is indeed necessary to be protected by law, how is this problem be solved? The only way out is to seek other form of legal protection. At present, legal protection to this type of database implemented internationally including mainly three measures:
a)Method of law against unfair competition. This kind of law is the component part in the legal system of protecting the intellectual property. The Paris Convention for the Protection of Industrial Property defines unfair competition as “any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.”15 And the WIPO Model Provisions on Protections Against Unfair Competition (1996) also provides in article 1 that “In addition to the acts and practices referred to in Articles 2 to 6, any act or practice, in the course of industrial or commercial activities, that is contrary to honest practices shall constitute an act of unfair competition.” In the course of developing a database the compiler will spend much in both labor and money in selecting and arranging the data, so when his labor fruit—database, especially those non-original ones, was copied or plagiarized illegally by other data dealer, he may obtain the legal protection with the help of this law. In China, the Law against Unfair Competition enacted in 1993 provides that “an operator shall, in transactions in the market, follow the principle of voluntariness, equality, fairness, honesty and credibility, and observe generally recognized business ethics.”16 The basic civil law of China—the General Principle of the Civil Law also states that “In civil activities, the principles of voluntariness, fairness, making compensation for equal value, honesty and credibility shall be observed.” These provisions expounded that principles of honesty and credibility are the basic code of ethics that any businessman must abide by, and any action the operator conducts in the market, such as pursuing ones own interests by infringing upon other’s lawful interest, will not be comfortable to the public morals and also be forbidden by law.
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