What is a database?

A database is an organized collection of data that can be accessed, managed, and updated by authorized users.  It is a digital system that stores data and information in a structured manner, allowing users to retrieve specific data or information quickly and easily. A database can be designed to hold a variety of information, including text, numbers, images, video, and more.

Databases are used in businesses, institutions, and organizations of all kinds to keep track of inventory, customer information, financial data, and other information. There are many different types of databases, including relational databases, non-relational databases, and distributed databases.

Research institutions or businesses often exploit databases by way of licence rather than sale, taking advantage of the fact that they can be reproduced infinitely and effortlessly without degradation and can be accessed by many users at once.

Common law

As a general principle there is no property right in information itself.  The UK Court of Appeal in Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281 confirmed that databases do not represent tangible property of a kind that can form the subject matter of torts concerned with an interference with possession.  (This case concerned the payment of outstanding fees, where the UK Court of Appeal held that the database manager could not hold lien over the electronic database that it had managed.)

Statute

The term ‘database’ is not defined in statute in Hong Kong.  The term ‘data’ is, however, defined under Personal Data (Privacy) Ordinance (Cap. 486) to mean any representation of information (including an expression of opinion) in any document, and includes a personal identifier.

The term ‘database’ is defined in section 3A(1) of UK Copyright, Designs and Patents Act 1988 to mean:

“a collection of independent works, data or other materials which –

(a) are arranged in a systematic or methodical way, and

(b) are individually accessible by electronic or other means.”

Protection under Copyright 

Although Hong Kong does not have a statutory definition of database, compilations of data may nonetheless be protected by copyright.  Copyright may subsist in each work comprising part of a database. Section 2 of the Copyright Ordinance (Cap. 528) would offer protection to, among others, literary works, dramatic works, musical works, and artistic works ((such as graphic works: diagrams, charts, plans) and photographs); and sound recordings.

There is no system for copyright registration in Hong Kong.  Copyright is an automatic right and arises when a work is created.  To be eligible for copyright protection, the work must be original and skill, judgement, labour, and effort must have been expended in its creation. 

An item may be protected by more than one copyright as it may consist of more than one copyright work. 

A copyright infringement action can be brought on the grounds of:

1. primary infringement;
2. secondary infringement.

Both primary infringement and secondary infringement primarily attract civil liability.

(1) Primary infringement refers to a person, without the consent of the copyrighter owner, carries out or causes or requires another person to carry out, the following:

• • copying work;
  • circulating/distributing copies of the work to the public;
  • renting copies of the work to the public;
  • making copies of the work available to the public;
  • performing, showing, or displaying the work in the public;
  • broadcasting the work; or
  • making an adaptation to the work.

(2) Secondary infringement refers to a person, without the consent of the copyright owner, carries out, among others, the following:

• • importing exporting the works from HK;
  • possessing, selling or otherwise dealing with copies of the work for trade or business; or
  • distributing infringed copies of work to the extent that it would affect the copyright owner.

Under the Copyright Ordinance, a person would commit a criminal offence if he, among others, makes infringing copies for sale or hire.

Takeaways

In today’s fast-paced business environment, protecting intellectual property has become more critical than ever.  Companies must take proactive steps to safeguard their valuable trade secrets, patents, and copyrights from infringement, theft, or unauthorized use.  The traditional methods of protecting intellectual property, such as obtaining patents or registering copyrights, may not be enough in an increasingly connected and innovative world.  We must think outside the box to develop new strategies and obtain protection that meets the challenges of today’s marketplace.  Like in above-mentioned UK Court of Appeal case, Your Response Ltd v Datateam Business Media Ltd, one could consider preventing access to the database pending payment rather than seeking to hold lien over the database.

With the right protection in place, businesses can continue to innovate and thrive despite the inherent risks in today’s competitive marketplace.  Please reach out to us to find out how we can help you protect your intellectual properties.  

  Alfred Leung, Partner    (E: alfredleung@hkytl.com; T: 852 3468 7202)

YTL LLP is a law firm headquartered in Hong Kong, China.  This article is general in nature is not intended to constitute legal advice.