Electronic database protection and the limits of copyright: what options for developing countries?

Database protection is traditionally the prerogative of copyright. Copyright aims at fostering creativity by the grant of exclusive rights for a limited term for authors of literary, artistic or musical works. Compilations or databases are species of literary work; which are protectable by copyright if the requisite minimum-originality threshold is satisfied. The originality criterion is designed to sift ideas, facts and other public-domain materials from the creative expression of such ideas or facts. The idea/expression dichotomy is central to copyright philosophy. However, determining what elements of databases should be considered in applying the weight of the originality criterion is as problematic as it is controversial. In the United States, the originality criterion is applied very strictly, and copyright was denied to white pages of telephone directories in which subscribers’ names and addresses were arranged in the traditional alphabetical order.’ However, in the United Kingdom and Australia, courts lean more in favour of protecting the labour involved in the selection, arrangement or collation of the contents of databases. This is known as “sweat-of-the-brow’’ database protection. Critics rail against sweat of the brow as capable of short-changing the copyright ideal, and as being no more than an intrusion on public domain. The European Union came up with an answer in the form of the stli genetis EC Database Directive.2 It is designed to protect investments in commercial databases as a means of encouraging more investments in database ventures. An attempt to internationahze the Database Directive through the World Intellectual Property Organization (WIPO) &d not catch on in 1996. The international apathy towards the stligeneris regrme is due to many reasons, ranging &om alternative forms of protection such as unh- competition and technological measures, i.e. encryption, to protests fi-om the civil society which perceives the sui gmeris regime as an enclosure of the common or the public domain. This article examines what form of protection developing countries might wish to adopt. There are a variety of options, ranging from copyright and unfair competition legislation to industry control through technology, such as encryption. Nigeria’s copyright law is examined as a model. It has a strict approach that is akin to that of the United States in the application of the originality criterion to databases. The article has seven Sections. Section I contains the introduction, and dscusses the general notion of copyright. It also examines the criteria for copyright and copyright protection under international law. Section 11 dscusses database protection, types of databases and the rationale for database protection. Section 111 analyses electronic database protection, and discusses such protection in the United States, the United Kingdom, Australia and the European Union. Section IV highlights the boundaries of copyright in database protection, the scope of database exclusive rights, defences to database infringement suits and the duration of database rights. Section v discusses electronic database protection in Nigeria and Section VI, the prospects for an international database suigeneris regime. Section VII sums up the findings