Report Q182

Database protection at national and international level

in the name of AIPPI Chinese Group

by Jiang Qinfeng
Luo Hong

1. Analysis of Current Legal situation

1.1 Legislation

Q: Is there any legislation in your country dealing specifically with databases? If so, please describe it.

A: No.

1.2 Definition of Database

Q: Is there any definition of the term “database” in your country’s legislation or case law? If so, does it extend both to electronic and non-electronic databases?

A: No.

1.3 Copyright Protection of Databases

1.3.1 Subject Matter

Q: Does your country’s law provide for copyright protection of compilation? If so, does it only cover collections of literary and artistic works or does it also cover compilations of data or material other than literary and artistic works?

A: Yes. It covers both collections of literary and artistic works and compilations of data or material other than literary and artistic works.

1.3.2 Criteria of Protection

Q: If your country’s law provides for copyright protection of compilations, is the protection limited to compilations which “by reason of the selection or arrangement of their contents constitute intellectual creations”? Are there any supplementary criteria to selection and arrangement? What is the level of originality required for a compilation to be considered a work? Does hard work in gathering data, known alternatively as “sweet of the brow”, qualify a compilation as original?

A: According to the “Copyright Law of the People’s Republic of China”, a compilation shall have originality in the selection or arrangement of its contents in order to be protected as a work by copyright law. There are no supplementary criteria to selection and arrangement, and neither are there explicit requirements for the level of originality. Whether a compilation is original and thus considered as a work is generally decided by a court according to the specific circumstances of the compilation. Nevertheless, mere hard work in gathering data or “sweet of brow” will not be sufficient to qualify a compilation as original.

1.3.3 Scope of Protection

Q: What is the scope of copyright protection of a compilation? To which extent can a compilation be copied without infringing the copyright in the compilation?

A: There are no explicit provisions in the Copyright Law and its implementing regulations in respect of the scope of copyright protection of compilations. Generally it is only in an unsubstantial manner that a protected compilation can be copied without infringing the copyright in the compilation except in the cases provided in Article 22 of the Copyright Law.

1.4 Sui generis Protection of Databases

1.4.1 System of Protection and Subject Matter

Q: Does your country’s law provide for sui generis protection of compilations of data such as database? If so, is registration of the database required to secure sui generis protection? Does your country’s law provide for sui generis system only cover databases which do not meet the criterion of originality or is there cumulative sui generis protection also for original databases protected by copyright?

A: The Chinese laws do not provide for sui generis protection of compilations of data such as database. And therefore, there is no answer to questions 1.4.2 to 1.4.5 of the “Questions on the Agenda”.

1.5 Possible Alternatives for a sui generis System

1.5. 1 Unfair Competition Law

Q: Does your country have a law of unfair competition? If so, does it have a role in the protection of databases? If so, to what extent?

A: Yes. The Anti-unfair Competition Law of the People’s Republic of China has a role in the protection of databases. To databases which do not meet the copyright protection standards but constitute trade secret, they can be protected by the Anti-unfair Competition Law of the People’s Republic of China.

1.5.2 Other Means of Protection

Q: Does your country provide for any other means of protecting databases? If so, in which legal areas and by which mechanisms (e.g. contract law)?

A: Yes. The Contract Law of the People’s Republic of China and the Civil Code of the People’s Republic of China are helpful to protect databases which do not meet the copyright protection standards.

2. Proposals for Adoption of Uniform Rules

2.1 Legislation

Q: Should legislation be enacted to deal specifically with databases? If so, should national legislation be enacted or is there a need for an international treaty on the protection of databases?

A: We think legislation should be enacted to deal specifically with database and both national legislation and international treaty are needed.

2.2 Definition of Database

Q: If you think that legislation should be enacted to deal specifically with databases what should the definition of “database” be? Should it extend to both electronic and non-electronic databases?

A: We think the EU’s definition of database is acceptable, i.e. “database” should mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. And databases should extend to both electronic and non-electronic databases.

2.3 Copyright Protection of Databases

Q: Do you think that the copyright protection should be granted to databases? If so, what should the criteria of protection be? Do you think that the level of originality required for a database to be copyrightable should be low, so that “sweet of the brow” databases qualify as copyrightable? What should the scope of copyright protection be?

A: The copyright protection should be granted to databases possessing originality in selection and arrangement. “Sweet of the brow” databases should not be protected by copyright. And the scope of copyright protection for databases should be in line with the copyrights granted to other works.

2.4 Sui generis Protection of Databases

2.4.1 System of Protection and Subject Matter

Q: Do you think that sui generis legislation should be enacted to protect databases? If so, should there be a registration system to secure sui generis protection? Should the sui generis system only cover un-original databases or should there be the possibility to obtain cumulative sui generis protection also for original databases protected by copyright?

A: We think sui generis legislation should be enacted to protect databases. There should be a registration system to secure sui generis protection. The sui generious system should cover both original and un-original databases and there should be cumulative sui generis protection for original databases protected by copyright.

2.4.2 Criteria of Protection

Q: If you think that sui generis legislation should be enacted to protect databases, what should be the criteria of protection? If you think “substantial investment” should be one of criteria of protection what should be the level of investment required for an investment to be considered substantial?

A: Substantial investment of both money and labor should be considered as criteria of protection. “Substantial investment” should be interpreted by judges according to specific circumstances.

2.4.3 Rights granted and Scope of protection

Q: What right should be granted to the database maker? If you think the “extraction” and “re-utilisation” should be covered by the rights to be granted how should these notions be defined? If you think that “substantial part” should be relevant in determining the scope of protection, how should this concept be defined?

A: The database maker should have right to prevent others from exploiting the database without authorization. The database maker should have the right to license, assign, use, disclose the database and the right to be named s the database maker. The words of “extraction”, “re-utilisation” and “substantial part” should be left to be interpreted by courts.

2.4.4 Limitations and Exceptions

Q: Should limitations or exceptions be granted? If so, which ones(e.g. private use, scientific research, education, public security, government purposes)? Should there be any compulsory licensing provisions?

A: There should be limitations and exceptions on sui generis protection for databases. The limitation and exceptions should be in line with the copyright protection for databases possessing originality. Therefore, the limitations and exceptions should include private use, scientific research, education, public security and government purposes. And there should be compulsory licensing provisions.

2.4.5 Duration of Protection

Q: How long should the sui generis protection be?

A: As the value of databases vary, we think the duration of protection should be renewable.

2.4.6 Assessment of existing sui generis

Q: If your country already provides for sui generis protection of databases, do you think the system should be revised? If so, why and in what ways?

A: Presently, there is no sui generis protection of databases in China.

2.5 Possible Alternatives for a sui generis system

Q: If you country does not have unfair competition rules or if your country’s unfair competition law does not have a role in the protection of databases do you think your law should be changed, so as to provide database protection on the basis of unfair competition law? Should there be any other means of protecting databases which your country does not offer or not fully take into account? If so, which ones?

A: China has unfair rules having a role in the protection of database.