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Introduction

A commercial database is rarely just a pile of facts. A legal research platform, a flight-data provider or a mailing-list business spends heavily on collecting, sorting and presenting information, and then sells access to the result. Competitors can often copy that result at almost no cost, so businesses ask whether copyright can stop them. Copyright can protect a database, but only in a narrow way. It protects the selection or arrangement of data when that selection or arrangement is original. It never protects the underlying data.

Quick answer: Database copyright covers the original structure of a database, not the facts inside it. India, the United States and the European Union all follow this principle, though they reach it by different routes.

Is a Database Protected by Copyright? Facts, Compilations and the International Baseline

Copyright has always separated expression from information. Facts are discovered, not created, so nobody can own them. Compilations are different, because someone has to decide what goes in and how it is organised.

Three international instruments reflect this logic:

• Berne Convention, Article 2(5): protects collections of works that, by reason of the selection and arrangement of their contents, are intellectual creations.

• TRIPS Agreement, Article 10(2): extends the same logic to compilations of data.

• WIPO Copyright Treaty, Article 5: likewise extends it to compilations of data.

In each case, protection attaches to the structure. The contents remain free for anyone to use.

Database Copyright in the United States: Feist and the End of “Sweat of the Brow”

The American position is the clearest. In Feist Publications v. Rural Telephone Service (1991), the US Supreme Court held that a telephone directory’s white pages were not protected. The names and numbers were facts, and arranging them alphabetically was too obvious to count as creative.

The Court rejected the older “sweat of the brow” idea, under which effort alone earned copyright. It insisted instead on a minimal spark of originality.

The result is what courts call thin protection:

• A database owner can stop wholesale copying of an original selection or arrangement.

• A rival who independently gathers the same facts and organises them differently does not infringe.

Database Copyright in India: From Skill and Labour to a Modicum of Creativity

What the Copyright Act, 1957 Says

Section 2(o) of the Copyright Act, 1957 includes tables and compilations, including computer databases, within the definition of a literary work.

The Early Skill and Labour Standard

Indian courts first leaned on the skill and labour standard borrowed from English law. In Burlington Home Shopping v. Rajnish Chibber (1995), the Delhi High Court protected a mail-order company’s customer database against a rival that had copied it. It reasoned that compiling the database took real skill and effort.

Eastern Book Company v. D.B. Modak (2008)

The Supreme Court revisited the issue in Eastern Book Company v. D.B. Modak (2008). It rejected both extremes. Sweat of the brow was too low a bar, and the claim that a work must show novelty or high creativity was too high.

The Court settled on a modicum of creativity, meaning a minimal degree of intellectual input that is more than mechanical. Applying that test, it held that:

• editorial additions such as headnotes could qualify, and

• trivial copy-editing of public-domain judgments could not.

For database owners, the lesson is that investment alone does not create copyright in India, but a genuinely creative selection or arrangement does.

Database Protection in the European Union: Two Layers of Protection

Europe takes a double-track approach through the Database Directive (96/9/EC).

Layer Provision What it protectsCopyrightArticle 3Databases whose selection or arrangement amounts to the author’s own intellectual creationSui generis rightArticle 7Databases reflecting a substantial investment in obtaining, verifying or presenting their contents

The Court of Justice has kept both layers within limits:

• British Horseracing Board v. William Hill (2004): the sui generis right protects the cost of collecting existing data, not the cost of creating the data in the first place.

• Football Dataco v. Yahoo! UK (2012): football fixture lists did not attract copyright where their arrangement was dictated by rules or technical constraints rather than by free and creative choices.

India has no equivalent of the sui generis right. An Indian database owner therefore depends on the thinner copyright route, which makes the originality threshold decisive.

How to Protect a Commercial Database: Three Practical Points

1. Protection Depends on How the Database Is Built, Not What It Cost

A curated selection, a distinctive classification scheme or an editorially designed structure may qualify. An exhaustive list sorted alphabetically, chronologically or by a fixed technical rule probably will not, because the choices are obvious or dictated by function.

2. The Scope of the Right Is Limited

Copyright prevents copying of the protected selection or arrangement. It does not stop a competitor from extracting individual facts and reorganising them in a different way. Proving infringement therefore means showing that the original structure itself was taken, which is difficult when only a fraction of the data was used.

3. Do Not Rely on Copyright Alone

Contractual terms of use, access controls, confidentiality obligations and trade secret protection can cover what copyright leaves out, particularly the raw data. Courts will enforce these only if the owner has actually put them in place.

Conclusion: Designing and Safeguarding Your Database

Copyright can protect the selection or arrangement of data in a commercial database, but only where that selection or arrangement reflects original intellectual choices. Even then, the protection covers the structure and not the facts.

The United States, India and the European Union all arrive at this point from different directions, with Europe alone adding a separate investment-based right. Until India adopts something similar, database owners here must design their products creatively and back them with contracts and confidentiality measures.

KEY TAKEAWAYS

• Copyright protects the original selection or arrangement of a database, never the underlying facts.

• The Berne Convention, TRIPS, and the WIPO Copyright Treaty all reflect this compilation principle.

• In the US, Feist (1991) rejected “sweat of the brow” and requires a minimal spark of originality.

• In India, Eastern Book Company v. D.B. Modak (2008) requires a modicum of creativity, so investment alone is not enough.

• The EU adds a sui generis right under Article 7 of the Database Directive, protecting substantial investment in obtaining, verifying or presenting data.

• India has no sui generis database right, so the originality threshold is decisive.

• Alphabetical, chronological or rule-driven arrangements probably will not qualify.

• Protect raw data with contracts, access controls, confidentiality obligations and trade secret protection.

FAQ SECTION

1. Can copyright protect a database?
Yes, but only in a narrow way. It protects the selection or arrangement of the data where that selection or arrangement is original.

2. Does copyright protect the data inside a database?
No. Facts are discovered, not created, so nobody can own them. Protection attaches to the structure only.

3. What does “sweat of the brow” mean?
It is the older idea that effort alone earns copyright. The US Supreme Court rejected it in Feist, and the Indian Supreme Court called it too low a bar in Eastern Book Company.

4. What did the US Supreme Court decide in Feist v. Rural Telephone?
In 1991, it held that a telephone directory’s white pages were not protected. The names and numbers were facts, and alphabetical arrangement was too obvious to be creative.

5. Are databases protected under Indian copyright law?
Yes. Section 2(o) of the Copyright Act, 1957 includes tables and compilations, including computer databases, within the definition of a literary work. Protection still requires sufficient originality.

6. What is the “modicum of creativity” test?
It is the standard the Supreme Court set in Eastern Book Company v. D.B. Modak (2008): a minimal degree of intellectual input that is more than mechanical.

7. What did Burlington Home Shopping v. Rajnish Chibber decide?
In 1995, the Delhi High Court protected a mail-order company’s customer database against a rival that had copied it. It reasoned that compiling the database took real skill and effort.

8. Does the skill and labour standard still apply in India?
The Supreme Court in Eastern Book Company rejected sweat of the brow as too low a bar and adopted the modicum of creativity standard.

9. Does investment alone create copyright in a database in India?
No. A genuinely creative selection or arrangement is required.

10. What is the sui generis database right?
It is a separate EU right under Article 7 of the Database Directive (96/9/EC). It protects databases that reflect a substantial investment in obtaining, verifying or presenting their contents.

11. Does India have a sui generis database right?
No. Indian database owners depend on the copyright route.

12. What did British Horseracing Board v. William Hill decide?
In 2004, the Court of Justice held that the sui generis right protects the cost of collecting existing data, not the cost of creating the data in the first place.

13. What did Football Dataco v. Yahoo! UK decide?
In 2012, the Court of Justice held that football fixture lists did not attract copyright where their arrangement was dictated by rules or technical constraints rather than free and creative choices.

14. Which kinds of databases are unlikely to qualify for copyright?
An exhaustive list sorted alphabetically, chronologically or by a fixed technical rule probably will not qualify, because the choices are obvious or dictated by function.

15. Can a competitor reuse the facts from my database?
Copyright does not stop a competitor from extracting individual facts and reorganising them differently. You would need to show that the original structure itself was taken.

16. How else can database owners protect their data?
Contractual terms of use, access controls, confidentiality obligations and trade secret protection can cover what copyright leaves out. Courts will enforce these only if the owner has actually put them in place.

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