Have you invested a lot of time, effort and know-how into creating databases within your business?
Among the most valuable assets within many businesses are the collections of data they have created in order to allow them to carry on their day to day commercial activity. These could include things like mailing lists and customer records – if a competitor were able to access and re-utilise those, they would gain a huge commercial advantage and the ability to significantly erode your own market share, not to mention the damage to your reputation. Other businesses use collections of data as part of their commercial offering. For example, searchable directories of recommended service providers or images, or collections of resources or offerings that are selected and presented on the basis of answers to a series of questions.
So, how can you protect your databases?
Trade Secrets
First of all, and probably most intuitively, confidential databases (i.e. those that are not accessible to or by the public) like your mailing lists and customer records constitute company confidential information and, if they are treated as such within the business, then their unauthorised copying and use could be actioned under the Trade Secrets Directive. But for this to hold, it is essential for this confidential information to be guarded as a trade secret within all parts of the business. This means that your employees should clearly understand how to handle this data, how and when it can be accessed, and by whom, employment contracts and shareholders agreements should provide clear confidentiality obligations and sanctions, and the cyber security around your database storage needs to be top notch to prevent theft and unauthorised use of your confidential information through cyber attacks.
You can read more about trade secrets in one of our other blogs here.
Copyright
Some individual data items in a database may be protected by copyright. Consider, for example, a searchable database of short stories, videos, poems or images, each of which may be protected by copyright.
Database Right
Each individual data item may have its own copyright protection (which, of course, you may not own), but if you collected all of these together into a searchable database that enables them to be selectively retrieved online (say), then it is likely that your business will own the Database Right for the organisation of the collection, even if it doesn’t own the copyright in all of the entries.
And this could be critical. If the database is accessible to the public, the Trade Secrets Directive becomes irrelevant, but Database Right can act to prevent unauthorised copying and re-utilisation of the database.
Database right, like copyright, comes into being automatically as soon as a qualifying database is created.
A ‘database’ is defined as “a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means”. This covers things like traditional mailing lists and customer records, as well as searchable databases of resources or other data, whether stored electronically or in paper form.
A person infringes a database right if they extract or re-utilise all or a substantial part of the contents of a protected database without the consent of the owner. This would cover, for example, copying some or all of the contents of one database into another database and/or making the contents of a database available to the public (not necessarily for the first time) by any means. It is worth noting that extracting or re-utilising a substantial part of the contents can result from the repeated and systematic extraction or re-utilisation of the individual contents of a database. So an infringer does not necessarily have to access and copy the whole database, but could instead use the public facing database to systematically extract individual parts of the database to recreate it.
You can read more here: https://www.gov.uk/guidance/sui-generis-database-rights
In today’s data rich commercial landscape, many (if not all) companies have valuable intellectual property rights in their databases, and many don’t even know it is there. Make sure you count the IP in your databases amongst your valuable company assets, and police and protect it as such.
Need help?
If you need any IP advice, please book a free initial consultation by emailing vicki.strachan@strachanip.co.uk or visit our website at https://strachanip.co.uk/contact/
