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Information and Communications Technology Law
It is irrelevant if a device has any lawful purpose other than circumvention.
Procuring or possessing a device with the intent to gain unauthorized access to data is a criminal offense.
Fair dealing may not help consumers as anti-circumvention isn't specifically related to copyright infringement.
Protection of Electronic Databases
Introduction
The Internet connects individuals with numerous information sources.
The Internet evolved from academic communication to a major global data pipeline for intellectual property.
Online information retrieval services were initially costly and used by a small community.
The Internet's development has made "online" a household term.
What are Electronic Databases?
Electronic databases are organized collections of recorded data or information in electronic or digital form.
Data can be accessed, reproduced, or retracted from electronic databases.
Most people possess data in quantities that can lead to information overload or blackout.
Databases provide information about information, serve as building blocks of knowledge, and are essential for e-commerce.
Databases form the core of information technology and systems.
The market has exploded with tools for searching, matching, collating, updating, replicating, and distributing data.
Internet search engines are familiar examples of such tools.
A search engine is a computer program designed to accept inquiries and search large electronic databases.
Search engines can locate digital property regardless of geographic location.
The term "search engine" includes directories, Magellan search engines (such as Lycos, Infoseek and Webcrawler), super search engines, meta search engines, and special search engines.
Super search engines search for keywords within the text of web pages, not just titles or descriptions.
A meta search engine (e.g., Metacrawler) allows users to employ multiple search engines simultaneously.
Meta search engines do not typically contain site databases of their own; they route requests to other engines and compile results.
Some search engines target specific types of information, such as Usenet newsgroups (DejaNews), telephone listings (Infospace), and FTP archive sites (FTP Search).
Engines search by keyword, using algorithms to determine search criteria and locate relevant responses.
The Legal Protection of Electronic Databases
"Database" encompasses data, effort to locate data, originality in arranging data, search tools, and aspects of creating these tools.
Collecting and organizing information requires raw human effort.
Significant resources are invested in assembling databases.
Electronic databases share two characteristics: they are costly to produce, but easy to reproduce or copy.
Digital property is easily located, accessed, copied, modified, and distributed.
Advances in copying and editing lead to new derivatives and recompilations.
Pirated copies of databases can be quickly disseminated globally at a fraction of the development cost.
Compilers of uncopyrightable databases face diminishing commercial prospects without international protection.
Databases have caught the intellectual-property system unprepared.
Computers archive, compare, manipulate, and distribute data easily.
Neither data nor the labor involved in collecting, recording, and arranging data has a secure place in current intellectual-property law.
As the database market and cross-border information flow grow, the demand for a harmonized legal environment will increase.
Copyright Protection of Databases
Copyright law, electronic databases, and the Internet are linked.
Much of the material on the Internet consists of works of authorship, such as literary, musical, audio-visual works, computer programs, and database information.
The Internet requires data to be copied or reproduced, putting copyright into issue.
Criteria for the Subsistence of Protection
Originality
Traditional copyright requires originality or creativity in the selection or arrangement of data.
The originality requirement for copyright protection of compilations varies across legal systems.
UK and Commonwealth courts favor the "sweat-of-the-brow" approach: work enjoys copyright if labor and skill were expended, regardless of its nature.
In the United States, a minimal degree of creativity or "creative spark" is needed.
In Feist Publications Inc. v. Rural Telephone Service Co., the court held that labor and capital expenditure do not make a compilation copyrightable.
Originality requires a minimal level of creativity, evidenced by independent work in selecting and arranging the new compilation.
This approach was followed in Warren Publishing Inc v. Microdos Data Corp, which held that a directory of information about American cable-television systems is not copyrightable because it lacked sufficient creativity.
Under German copyright principles, most factual databases do not qualify for copyright protection unless their "selection, accumulation and organization" have been achieved with know-how beyond that of the average programmer.
Under French and Dutch copyright law, most compilations do not enjoy copyright protection because they require original works to reveal something of the author's personality.
Competition Law
In the United States, the Supreme Court stated that copyright protection for the investment of labor and capital in non-creative databases may be available under unfair competition theory.
Some courts have recognized protection outside copyright law for facts amounting to "hot news" under misappropriation law.
In National Basketball Association v. Motorola Inc., the court held that New York common law protects time-sensitive data from "free-riding."
The National Basketball Association brought a copyright-infringement action against Motorola, which provided real-time information updates about professional basketball games on hand-held pagers.
The court held that the information transmitted by Motorola did not constitute "hot news," and the National Basketball Association was denied copyright protection.
A "hot news" claim is limited to cases in which:
A plaintiff generates or gathers information at a cost.
The information is time-sensitive.
A defendant's use of the information constitutes "free-riding" on the plaintiff's efforts.
The defendant is in direct competition with a product or service offered by the plaintiff.
The ability of other parties to "free-ride" would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
Unfair competition principles regulate competitors' behavior.
Database protection should address free-riders and "information Samaritans" who extract data without paying and make it freely available.
Private unauthorized use of databases might not be adequately addressed through unfair competition principles.
Conclusions
Copyright law is the most apt system for protecting databases.
The requirement of "originality and a modicum of creativity" is too stringent for electronic information tools that process and store information automatically.
It is increasingly difficult to determine whether a database meets this requirement.
New technologies blur the line between information and expression.
Most commercial and scientific databases are excluded from copyright protection because they do not meet the originality requirement.
International Initiatives
The EU Database Directive
The European Union adopted the Council Directive on the Legal Protection of Databases (the Database Directive) on 11 March 1996.
The primary purpose of the Database Directive is to stimulate investment in databases and increase the European share of the market.
Article 1(2) defines "databases" broadly as a collection of independent works, data, or other materials arranged systematically and individually accessible by electronic or other means.
It is not necessary for the data to be physically stored in an organized manner.
The definition includes non-electronic databases and the materials necessary for the operation of certain databases, such as thesauruses or indexation systems.
A CD-ROM-based multimedia package, a website, or an electronic library catalogue falls within the scope of the Database Directive.
Article 1(3) excludes computer programs used in the manufacture or operation of databases.
Article 2 states that the Directive does not pre-empt other European Community statements on copyright, including the 1992 Council Directive on the Legal Protection of Computer Programs (the Software Directive).
Article 2 appears to contradict Recital 20, which states that protection may be extended to "the materials necessary for the operation or consultation of certain databases".
Some commentators argue that a computer program could be seen as a thesaurus or index for operating or consulting a database.
It is argued that "thesaurus" and "index" refer to other collections of data stored with the database to facilitate access to it.
An index may increase access speed, while a thesaurus may define parallel meanings.
Some databases may contain executable instructions. It is unclear whether the Database Directive or the Software Directive applies to the mechanisms involved in manipulating the contents of a database.
Pattison's argument that the command procedures for accessing databases are included in the "system for obtaining or presenting information" applies equally to "materials necessary for the operation or consultation of certain databases".
Such procedures will attract copyright protection only if the database with which they are used is copyrightable.
The Software Directive specifies the appropriate level of copyright protection for search engines and related software tools.
Recital 23 applies to database-management systems, such as search engines, used in the making and operation of a database, which fall outside the scope of the Database Directive.
Recital 20 to the Database Directive is restricted to materials necessary for the operation or consultation of a database.
The Directive does not apply to all data: restrictions are imposed on the use of personal data.
Copyright Protection
The Database Directive extends copyright protection only to databases that, by the selection or arrangement of their contents, manifest "the author's own intellectual creation" - i.e., databases that evidence some measure of "originality" or "creativity" on the part of the author.
Article 5 states that 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 themselves or to the material, and is granted without prejudice to any copyright subsisting in the data or material contained in the compilation.
Article 5 adopts the approach of the American Supreme Court in Feist Publications Inc. v. Rural Telephone Service Co., in which it was held that only the selection or arrangement of a compilation of facts, and not the facts themselves, can be protected by copyright.
The Database Directive rejects the traditional approach of the United Kingdom and Ireland and raises the threshold for copyright protection.
The standard is very similar to that applied in the United States after Feist, with one further limitation: the Database Directive requires intellectual creation by a human author for a work to be protected by copyright.
Is it correct to restrict the originality requirement to the selection or arrangement of the data, rather than to have it relate to the work as a whole?
The Directive itself does not provide clear guidance on where the line should be drawn between an original and a non-original database.
Barrett and Coulter argue that a database is characterized as much by the totality and comprehensiveness of its contents as by their selection and arrangement.
The requirement of a human author raises questions about the extent to which a database can be protected under copyright law if the selection and arrangement of data are accomplished by a computer program with minimal human contribution.
Article 4(1) provides that the author of a database is a natural person who has created the database and, if legislation of member States permits, the legal person designated as the right-holder.
Pattison notes that this raises the question who is the "creator"? Who entered the materials, chose the selection and arrangement criteria, or made the arrangements for the making of the work?
The Database Directive states that authors' moral rights fall beyond its scope.
An author may thus enter into a separate agreement regarding her or his moral rights in a work.
The Position in South Africa
The policy objectives that support the protection of literary works also underlie the protection of databases.
Copyright protection of single-source databases may be used defensively to lock out competitors.
Databases are protected as literary works.
Bare facts cannot be protected by copyright, but compilations of facts are within the subject matter of copyright protection.
This protection arises without prejudice to the copyright in each of the works forming part of such collections.
Section 2 of the Copyright Act states that a work listed in that section is not eligible for copyright protection unless the work is original.
The work need not be a vehicle for new or inventive thought, nor must such thoughts be expressed in a novel form.
As long as the author's own skill and labor were expended, the work will be deemed original, irrespective of whether an identical work already exists.
Two or more identical works can exist side by side as long as each work emanated from the author.
To be original, a work must emanate from the author and not be copied from another work.
It is not necessary that every aspect of the work emanate from the author; the author is free to use existing material.
When using existing material, the work must be more than a slavish imitation; it should be the result of the author's own independent labor.
Exactly what degree of labor is required is difficult to say.
A rough practical test is that what is worth copying is worth protecting.
Copyright protection has frequently been extended to compilations of non-copyright material because of the labor and skill involved in selecting and arranging the material.
Examples of protected compilations include:
Street directories
Lists of stock-exchange prices
Alphabetical lists of railway stations in a railway guide
Trade catalogs
Racing-information services
Chronological fixture lists of football games
Directories of telefax users
Catalogs and price lists
For a compilation to receive recognition as an original copyright work, it must not simply be a copy of existing material but must contain features and qualities absent from the material from which it was initially composed.
Electronic databases were protected by copyright prior to the 1997 amendment to the Copyright Act because the material-embodiment requirement could be met by digital embodiment.
The South African database owner is in an advantageous position: the originality requirement is set so low that both original and non-original databases qualify for protection.
Dean submits that an electronic database, like any other work, should be "original".
No higher standard or level of creativity is required.
In the United States, a minimal degree of creativity is needed to satisfy the requirement of originality.
Creativity is not required to make a work original in South Africa; the "sweat of the brow" is sufficient.
The requirement of originality is satisfied solely by the fact that the contents of a particular compilation have been independently collected through the author's own skill or labor, and not copied from another.
In Haupt t/a Softcopy v. Brewers Marketing Intelligence (Pty) Ltd and Others, Streicher JA confirmed that, because the Copyright Act originated from English law, creativity is not a requirement for copyright.
The test for originality in South African copyright law is as follows: "Save where specifically provided otherwise, a work is considered to be original if it has not been copied from an existing source and if its production required a substantial (or not trivial) degree of skill, judgment, or labor".
The "sweat of the brow" doctrine is still firmly entrenched in South African copyright law.
In Board of Healthcare Funders v. Discovery Life; Discovery Health (Pty) Ltd and the Council for Medical Scheme, the copyright protection of a database coined the "Practice Code Numbering System" (PCNS) was at issue.
The PCNS is a comprehensive database consisting of approximately 91,000 sets of data, numbers or codes that identify all medical practitioners and medical service providers in private practice in South Africa.
The PCNS contains a Practice Code Number (PCN) for each practitioner and other personal data such as the name, address, and contact details of each practitioner and practice details such as the practices' preferred billing method, referred to as PCN data.
The PCNS is used by all medical schemes in South Africa as an integral part of the processing of each claim.
It is used to verify a practitioner's registration and specialization in order to fulfill payment.
The originality of the PCNS database was at issue in Board of Healthcare Funders v. Discovery Life; Discovery Health (Pty) Ltd and the Council for Medical Schemes.
The Applicant contended that it and its predecessors had over the years expended a lot of time, money, and effort in creating the database.
The respondents contended that the database does not meet the requirement of originality, as it is merely a compilation of numbers and data that existed in the public domain.
In addressing the issue of originality, the court referred to the case of Ladbroke (Football) Ltd v. William Hill (Football) Ltd.
The House of Lords noted that in deciding whether a work in the form of a compilation is original, one should not consider the individual parts of the compilation.
Many compilations have nothing original in their parts, yet the sum total of the compilation may be original.
The court referred to the South African case law on the originality requirement for databases and concluded that the PCNS database was indeed original.
The court then turned to the question of authorship.
Between 1978 and 1993, Universal Computer Services (Pty) Ltd ("UCS") assisted the applicant with converting the data into computer-readable form.
UCS allocated blocks of sequential numbers according to the PCN formula and system.
The applicant contended that Universal did the work according to the applicant's specific formula and directions, and the applicant was the author of the PCN component of the work in terms of the Copyright Act.
The court noted that the respondents disputed the factual averments with regard to the applicant's authorship of the work.
The court held that the agreements of assignment between SOMS and the applicant and thereafter between the UCS and the applicant and the fact that in the third phase of the development of the system all activities took place under the direct supervision and control of the applicant pointed in the direction that the applicant was indeed the author of the work as contemplated in the Act.
The court conflated the distinct and separate concepts of "author" (the maker and creator of the work) and the copyright owner (who is not necessarily also the author of the work).
Various parties contributed to the creation of the database since its conception in the early sixties.
The Applicant was appointed only by the Council of Medical Schemes in 2003 to create the PCN.
The applicant became the copyright owner by virtue of the deed of assignment and not because it was the "maker or the creator" of the work.
The ownership of a database was also at issue in the Discovery case.
As noted above, the Applicant was appointed by the Council of Medical Schemes in 2003 to create the PCN.
The contract the parties entered into provides that the Applicant is the owner of the PCNS and that the ownership of the provider registry under the PCN database vests in the Council of Medical Schemes (the third respondent).
The Applicant attained an assignment of the databases created before 2003.
The Respondents alleged that the PCNS was developed in terms of a directive by the State.
Its content is determined by the regulations issued in terms of the Medical Schemes Act, and therefore copyright in relation to the database vests in the State.
The Chief Executive Officer (CEO) of the third respondent denied in an affidavit that copyright subsists in the practice code numbers.
The applicant averred firstly that the CEO of the third respondent is not competent to express an opinion with regard to the issue of copyright ownership or indeed copyright infringement and that his affidavit is in any event at odds with the express terms of the agreement entered into between the applicant and the third respondent.
The court noted that the question of whether copyright vests in the State would depend on the interpretation of section 5(2) of the Copyright Act.
This section provides that copyright shall be conferred on every work which is eligible for copyright and which is made by or under the direction or control of the State.
The court also noted that the PCN is generated in terms of regulations promulgated in terms of the Medical Schemes Act.
In terms of Regulation 1 of the Medical Schemes Council must approve practice code numbers.
These Regulations also provide for the appointment of a body or organisation approved by the Medical Schemes Council to allot practice code numbers to suppliers of relevant health services.
The applicant was appointed in terms of this provision.
Regulation 5 provides that the initials and surname of the patient; the name of the medical scheme; the membership number and the PCN must be set out in a practitioner's claim.
The court held that in order for a medical practitioner to submit a claim to a medical aid for payment, the claim would have to comply with the requirements of Regulation 5.
The court noted that the Supreme Court of Appeal decision of Biotech Laboratories (Pty) Ltd v. Beecham Group Plc and Another held that copyright would only vest in the State if the production of the work were the object of direction and control.
The creation of the PCNS was at best incidental to governmental licensing and monitoring.
The respondent has not illustrated that the State owned the copyright in the PCNS, and the Applicant clearly demonstrated ownership of the copyright work.
The court then turned to the allegations of copyright infringement.
The respondent received delta files weekly, containing information detailing changes in the information relating to practitioners.
The respondent extracted portions of information from these files and imported the information into the relevant field in the Discovery database.
The applicant's attorneys requested the respondent to indicate the extent of the data it had extracted from the applicant's database.
The court made the inference that a substantial amount of data was extracted and copied as the respondent failed to indicate how much data it had extracted from the applicant's database.
The court held that the second respondent had used a substantial amount of the information it received from the applicant to create its own database.
This conduct constituted infringement of the copyright that subsists in the database.
A case with a comparable set of facts, Transunion Auto Information Solutions (Pty) Limited v. Autobid (Pty) Limited, was recently heard in the KwaZulu-Natal High Court in Durban.
The Applicant in this case produces "Dealers Guides", detailing the monthly trade and retail valuations for vehicles.
The information that he makes available in these dealer guides is collated from raw data that arises from the sales of vehicles from approximately one thousand two hundred motor vehicle dealers in South Africa.
Having collected the data, the applicant then processes the information through its Automated Vehicle Value Adjustment system and derives what it regards as being reliable monthly trade and retail value for each vehicle.
This information is then published in its Dealer Guides and distributed to its customers (the retail motor vehicle industry).
The information for each vehicle is represented through a unique eight-digit code representing the make, model, and variant of the vehicle concerned.
The information is made available in printed and electronic form (the latter through a stand-alone windows application, a web-based online application, and through handheld electronic devices (called PDAs)).
The Applicant alleged that it is the owner of the copyright in the vehicle codes, the vehicle valuations, and in the five dealers' guides referred to above.
It turned on the infringement of the database.
The information is clearly of considerable importance to the trade and that persons who wish to have access to any of the formats in which the Applicant supplies information, takes out a subscription with the Applicant and pay a fee therefor.
The South African health system relies on the use of practice codes of medical practitioners to claim from a medical scheme.
The PCN appears to be an integral part of the PCNS data as it unlocks the data.
The functioning of the health system is dependent on the PCNS.
Discovery attempted to create its own PCN by bleeding data from the PCNS.
The parasitic use of another's data to create a competing work is wrong.
verifying the registration and discipline of a practitioner in order to facilitate payment, to prevent fraud and to verify that a claimant is claiming an amount within his or her scope of practice and discipline.
Conclusion
The Dematerialisation of Print and the Fate of Copyright explores that a new invention (the printing press) spawned an entirely new branch of law (copyright).
Copyright was already starting to show its age during the Third Industrial Revolution and running into headwinds with the recent Fourth Industrial Revolution.
Alvin Toffler's "Three Waves" bestow influence and power, consisting of land in the First Wave, capital and labor in the Second, and IT in the Third.
The First Industrial Revolution made maximum use of water and steam power.
The Second made maximum use of electricity.
The Third Industrial Revolution made use of computers and digital data.
The Fourth manages to make intelligent use of all the previous stages to reach levels previously only dreamt of.
Expert systems can now do everything from quality control to winning the world chess championship.
Robotics are removing drudgery from the mass production of even sophisticated end products.
Autonomous vehicles are starting to be produced by firms such as Tesla.
Fully immersive virtual reality computer games are making a mockery of the previous solitaires and shoot-em-ups.
One of the most intriguing new developments of the Fourth Industrial Revolution has been the "Internet of Things".
Practical examples have been "smart" home systems, autonomous farming equipment, wearable health monitors, and biometric security scanners.
More cases are likely to turn on the evidence of highly specialized expert witnesses.
Judges are more likely to select assessors on the basis of their technical expertise instead of legal expertise.
One proposed solution is to protect basic data as property - a sui-generis type of protection.
There is a long-standing principle that copyright should not be extended to cover basic information or "raw" data.
The keys to copyright protection of databases are selection and arrangement.
The more comprehensive the database, the less copyright protection may be available.
Stone and Kernick note that a comprehensive database may be commercially useful but not copyrightable, because "selection" requires the exercise of creative judgment in culling facts.
This principle may be problematic for digital databases such as those accessed through the Internet, since their appeal is their all-inclusiveness.
South African Copyright Law hasn't provided a panacea to cure all problems.
President Ramaphosa referred a Copyright Amendment Bill back because incorrect parliamentary procedure had been followed.
The Bill might have brought about arbitrary deprivation of property, as well as a lack of proper consultation on a possible broadening the "fair use" exemptions to copyright protection.
Concluding Remarks
Technological innovation poses difficult challenges for copyright law and policy.
Copyright law must adapt rapidly in order to remain relevant.
The use of technological protection measures to safeguard copyright works in digital formats is necessary in light of the ease with which these works may be unlawfully exploited.
South Africa is in a difficult position as a developing country.
We ought to devise our own strategies for coping with the proliferation of protectionism in the context of the widening digital divide.
It is imperative that we keep in step with the latest developments in international copyright law.
A "balancing of rights" between potential infringers and electronic "marketers" of their service on the one hand, and the private individual who values his or her privacy on the other, is going to be very difficult.
Capra speaks of "Information Economics", in the absence of material objects, being "based more on relationship than on possession."
Real rights should become personal rights between yourself and the person with whom you have a voluntary commercial relationship.
The Internet and digital signatures can erase the existing constraints of time and place and lead to an more even-handed way of contracting on the Internet.