Database Copyright in a Library: China’s Legislation, Judicial Case and Their Revelation

Author: 翟建雄 ; Source:chinalawinfo.com

Abstract: The rapid development of information technology and its wide application in library's domain provides a superb opportunity to library in its transformation from a traditional library to modern one. It is one of important ways that library realize its shift to a digital one by using digitalized techniques to compile various types of databases from its printed holdings in this way to bring about the sharing and dissemination of information spanning time and space. But the first problem confronting the compiler in his database construction is copyright. This paper, while introducing legislation and judicial case at home and abroad, especially analyzing the legal significance of major two types of database: original and non-original ones, probes the appropriate ways for digital libraries in handling their copyright problems arising in the course of compiling a database.
Key word: database, copyright, digital library

Introduction
The Internet must be one of great inventions of the mankind in the 20th century. Peoples' daily life has undergone immense changes along with the swift development of technologies of computer information, digitalization and network. Following figures are accountable to these changes. According to the authoritative data released in the semiannual reports of the 14th "Statistical Bulletin on the Development Status of China's Network"1 latest issued by China Internet Network Information Centre (CNNIC) in July 2004, up to 30 June 2004, in mainland China the online computers have amounted to 36.30 million, an increase of 41.1 percent over the last year; and the number of net users have also reached to 87 million, up 27.9 percent compare to data reported last year. Analyzing from the occupation of users, students hold the majority and make up to 31.9 percent of the total users; and the next is professional personnel, 13.2 percent. In view of places accessing network, more than 67.0 percent netizens access net at home; 42.7 percent in work unit; 22 percent in net bar, net school or net café; 20.6 percent in school and university; and the percentage of netizens accessing net in public libraries have increased from 0.4 percent last year to 1.8 percent this year. As to the purpose of visiting network, netizens looking for information constitute the main proportion and the percentage is 42.3; following is entertainment and rest, 34.5 percent; the third is learning, 9.1 percent or so. In answering the question of "using internet may enhance the efficiency of your work, study and life", more than 89.0 percent netizens agree with this view. In replying to the quiz "do you often acquire information from Internet?" about 98.7 percent participants give an affirmative answer to this question. In responding to the inquiry "what information do you often search for in net?" around 27.5 percent people select e-books.

From the investigation data mentioned above one can see that electronic documents existing in the network have become an important source for public to obtain information. Confronting the emergence of large quantities of electronic information resources and numerous netizens, the library, as a traditional distributing centre of literatures, must take some effective measures to cope with the challenge of information age. By digitalizing its holdings and compiling them into different types of databases, the library, with the help of network, may realize the share and dissemination of information spanning time and space, in this way the library will see great possibility of success in realizing transformation of its ways serving the public.

A survey on the development of Chinese database industry

Since the first DBMS system-IMS was developed by IBM Company in 1969, more than thirty years have elapsed in researching and developing the database. China's construction on database was commenced in 1980s. The databases established initially were mainly the types of abstract and index ones in science and technology. From the end of last century, accompanying the rapid development of network and wide utilization of digital technologies in libraries, the database has broke the model of single-computer retrieval and began to rely on the local area network and afterwards, the internet to offer online retrieval and information delivery service for even more users at home and abroad. Under this circumstance, secondary literature databases such as bibliographical, abstract, and index ones have far from meeting the needs of users. Thus the databases have transformed themselves to the digitalized full-text ones and their number have also increased sharply. According to the "2003 Investigation Report on the Number of China's Internet Information Resources", 2 upon to February 2004, the total of national online databases is reached to 169,867, 81.9 percent increase compare with 82,929 in 2002. Following is a table on number of databases in various types and their percentage:

Table 1: the number of online databases and their percentage 3

The result of investigation in the report shows that there are 108,986 websites that contains online databases, accounting for 18.3 percent of the whole website. The percentage of websites including database is illustrated as follows:

Table 2: percentage of websites including databases 4

Table 3: percentage of websites possessing online databases 5

Table 4: number of items contained in online databases 6

Analyzing from the object to which the online databases serves, catering to individuals constitutes the majority. Following is a chart illustrating the serving object of databases.

Table 5: serving object of databases 7

China laws and regulations on legal protection of database

From 90s of last century the Chinese National People's Congress (NPC) and the State Council have enacted or promulgated several laws and regulations with regard to the protection of copyright, such as:

Copyright Law（as amended on 27 October 2001）. 8
Regulations of Implementation of Copyright Law (as amended on 2 August 2002 and effective as of 15 September 2002). 9
Measures on Implementation of Administrative Punishment to Copyright (promulgated by State Council on January 4, 2000 and come into force as of the date April 1, 2000). 10
Regulations for the Protection of Computer Software (promulgated on 4 June 1991 and effective as of 1 October 1991) 11
Provisions on the Implementation of the International Copyright Treaties (Promulgated on 25 September 1992 and effective as of 30 September 1992). 12

In addition to central legislation the local legislatures at provincial level have enacted scores of local statutes on protection of copyright. And meanwhile, the Supreme People's Court has issued dozens of judicial interpretations on copyright. Apart from domestic legislation China also acceded to the two international conventions, the "Berne Convention for the Protection of Literary and Artistic Works" and "Universal Copyright Convention" both in 1992. Nowadays a legal system on protection of copyright has already been set up in China.

Although there have not been direct provisions involving copyright of database in China's legislation and international conventions China acceded at present, it does not mean that database is not to be protected by copyright law in China. The newly amended Copyright Law provides in item16 of article 10 that the copyright owner enjoys the right of compilation, that is, the right to compile works or parts of works into a new work by reason of the selection or arrangement. The article 14 of the law also states that a work created by compilation of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of compilation. The copyright in a work of compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works. These provisions, though pertaining to the compilation, have a potential meaning on protection of database, a type of compilation.

Before Chinese copyright law being amended the protecting scope of copyright is different to those compilations (databases) produced at home and abroad. In Copyright Law adopted in 1991, it stipulates in article 14 that a work created by collection of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of collection. The copyright in a work of collection shall be enjoyed by the editor, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works. Meanwhile, the Regulations of Implementation of Copyright Law promulgated in 1991 there is a definite explanation to the word of "collection". In item 11 of article 5 it provides that "collection" means the creation of a work by assembling a number of selected preexisting works, in whole or in part, according to an arrangement designed for a specific purpose. In Berne Convention there is also similar clause to the stipulations above mentioned. The section 5 of the article 2 in the convention states that "Collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections."

But in the Provisions on the Implementation of the International Copyright Treaties there are some different provisions on protection of foreign collections. In article 8 of the provisions it provides that foreign works created by compiling non-protected materials shall be protected in accordance with the provisions of article 14 of the Copyright Law, provided that originality is shown in the selection and arrangement of such materials. Such protection, however, shall not preclude others from using the same materials to create works of compilation.

From the provisions mentioned above one can conclude that prior to amendment the Chinese Copyright Law only protects those domestic collections (databases) composed of original works, which is on the same protection level with Berne Convention's. This dual criterion on protection of database is not in coordination with the provisions of TRIPs.

The second clause in article 2 of TRIPs provides that the compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself. That is to say, original material, whether it is under protection of copyright or not, shall be protected by copyright only it is in conformity with the said article. The protection level of TRIPs is obviously higher than Berne's.

In order to realizing coordination with international copyright system China has, in 2001, revised its copyright law and some alterations respecting to collection of works were made. For instance, the word "collection" was replaced by "compilation" and some new requirements towards compilation have been made. Materials or data compiled in a database include works that enjoy copyright and data that do not constitute a work. These alterations put an end to the dual standards on the copyright protection of database produced at home and abroad, which also become more conformable to the requirements of TRIPs.

Originality: a criterion of copyright protection for a database

In the WIPO Copyright Treaty (WCT) adopted on 20 December 1996 there is a clause regarding the copyright of a database. In article 5, compilations of data (databases), it says: 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 or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation. The Diplomatic Conference adopting the Treaty also states in the agreed statements that the scope of protection for compilations of data (databases) under Article 5 of this Treaty, read with Article 2, is consistent with Article 2 of the Berne Convention and on a par with the relevant provisions of the TRIPS Agreement. Provisions in Chinese copyright law and international conventions concerned explain that it is not all databases but those databases "having originality in the selection or arrangement of its contents" or "selection or arrangement of their contents constitute intellectual creations", can be protected by copyright law. Namely, only a database satisfies the essential requirements of originality can it be an object protected by copyright law.

Two types of database, different ways of protection

Database, according to its originality as a whole, may be divided into two types: original and non-original ones. Contents in both types of databases may be composed of works and parts of works that enjoy copyright as well as data having no copyright. These two types of databases, whatever they are original as a whole, must be protected by law. Only the ways of protection have their differentia.

According to the copyright law of China, database, only having originality, can be considered as a compilation and be protected. But how do we ascertain originality of a database? The answer to this question is that the originality is not reflected from its contents, namely the works and parts of works compiled, for they are not created by compiler; so the originality can only be shown from the selection or arrangement of data of contents. This type of database original in selection or arrangement of content may be considered as a work of compilation and protected by copyright law. Conversely, a database will not be protected by copyright law though they are compiled by works that are original and will also not be protected by copyright law because they have no originality in selection and arrangement in the contents.

Civil protection to the non-original database

In practice there are such kinds of databases which are composed of works protected by copyright law and factual material or data that is non-intellectual creations, such as telephone book, timetable, various business list or directory, etc., even though non-originality in contents on selection and arrangement they are, but compiler has devoted arduous work to and invested much capital in collecting, sorting out and arranging these factual materials and data. Does database non-original be protected by copyright law? the answer is negative. In American legal history, this kind of compilation (database) was once protected by court in accordance with the principle of "sweat of the brow" or "industrious collection" originating from the judicial case, "Jeweller's Circular Publishing Co. v. Kenstone Publishing Co."13In this case the judge in Second Circuit Court cites an English precedent, Walters v. Lane 14 and holds that compilations, unable to accommodate the originality requirement, were protected by their "sweat of the brow" and an author of a compilation of facts, "produce by his labor a meritorious composition, in which he may obtain a copyright, and thus obtain the exclusive right of multiplying copies of his works." But in the legislation afterwards these principles have faded gradually from the American copyright law since the case, Feist Publishing v. Rural Telephone Service Co, has been decided by the Supreme Court of the United States in 1991.

Since the database non-original can not be protected by copyright law and it is indeed necessary to be protected by law, how is this problem be solved? The only way out is to seek other form of legal protection. At present, legal protection to this type of database implemented internationally including mainly three measures:

a)Method of law against unfair competition. This kind of law is the component part in the legal system of protecting the intellectual property. The Paris Convention for the Protection of Industrial Property defines unfair competition as "any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition."15 And the WIPO Model Provisions on Protections Against Unfair Competition (1996) also provides in article 1 that "In addition to the acts and practices referred to in Articles 2 to 6, any act or practice, in the course of industrial or commercial activities, that is contrary to honest practices shall constitute an act of unfair competition." In the course of developing a database the compiler will spend much in both labor and money in selecting and arranging the data, so when his labor fruit-database, especially those non-original ones, was copied or plagiarized illegally by other data dealer, he may obtain the legal protection with the help of this law. In China, the Law against Unfair Competition enacted in 1993 provides that "an operator shall, in transactions in the market, follow the principle of voluntariness, equality, fairness, honesty and credibility, and observe generally recognized business ethics."16 The basic civil law of China-the General Principle of the Civil Law also states that "In civil activities, the principles of voluntariness, fairness, making compensation for equal value, honesty and credibility shall be observed." These provisions expounded that principles of honesty and credibility are the basic code of ethics that any businessman must abide by, and any action the operator conducts in the market, such as pursuing ones own interests by infringing upon other's lawful interest, will not be comfortable to the public morals and also be forbidden by law.

b)Method of protection of contract law. In his service to the public, the compiler of database may conclude contracts with users for offering information service from database. In this way the compiler can protect the contents of his database and his right of petition upon remuneration.

c)Method of protection of business secret. What is business secret, the Law Against Unfair Competition of China defines in item 3 of article 10 that business secret in this article means technical information and operational information which is not known to the public, which is capable of bringing economic benefits to the owner of rights, which has practical applicability and which the owner of rights has taken measures to keep secret."17In practice, many compilers provide only retrieval service to the content of their database for the sake of protecting the data security. As to the whole or essential data of the database the compiler often take some encrypting techniques to prevent from unauthorized visit to their database. If there have been infringement upon the business secret in database the compiler may protect their database by applying the law against unfair competition.

But in practical operation the protecting methods above mentioned will also be faced with some problems, e.g. it seems rather farfetched for a library to use the anti-unfair competition law to protect its database for the subject in the law against unfair competition is the operator engaging in the trading of goods or profit-making services. Library, as a non-profit and commonweal organization providing culture and information service to the public, is obviously not a subject suitable in this law; furthermore, it is not the purpose for a library to seek profits.

Judicial protection to database in China

In recent years, courts in China have heard several cases relating to copyright disputes, of which the Guangxi Broadcast & TV Newspaper v. Guangxi Coal Miner Newspaper 18 is typical one. In this case the complainant brought a suit against defendant of infringing upon his copyright by reprinting his TV Program List without permission. The first instance court deems that the TV program list belongs to the sphere of news on current affairs and has no copyright on it, any news media or individual may, subject to the copyright law, use it freely, and plaintiff's action was rejected. But the appellate court holds that the TV program list has, in copyright sense, no originality and is not suitable for protection with copyright law. But considering that the list is made through the complicated work that is full with professional labor, the civil right plaintiff enjoys over his labor product should be protected by law. The court decides finally that the defendant has infringed upon the plaintiff's civil right and shall bear civil liability. In this case the key problem is to clarify the nature and legal status of TV program list. Speaking technically, TV program list may be considered as a database simple in both structure and content. The legal significance stemming from the case explicates that databases, either is an original work or a labor product having no originality but containing quantities of labor and capitals, can be protected by copyright law and other civil law respectively.

Database copyright and digital library

Database, as provided by the Directive of the European Parliament and of the Council on the Legal Protection of Database 19 passed in 1996, "shall 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." As a storehouse of information, database can provide diversified information to the public. Therefore, it is an important part in the construction of digitalized resources of digital libraries. In the course of developing a database the digital library will be faced with two problems with respect to copyright, one is the copyright protection to the work or parts of work selected and compiled in database; the other is copyright protection to the entire database.

Databases exploited by digital libraries can be categorized mainly into three types: bibliographical database, abstract (or digest) database and full-text database. Speaking generally, bibliographical ones do not involve in copyright. The only thing merits compiler's attention is to protect the personality right of author, such as the right of authorship and the right of integrity of his works. As to abstract (or digest) and index ones, they pertain to the field of statutory license in copyright law. Article 32 of China's copyright law provides that except where the copyright owner has declared that reprinting or excerpting is not permitted, other newspaper or periodical publishers may, after the publication of the work by a newspaper or periodical, reprint the work or print an abstract of it or print it as reference material, but such other publishers shall pay remuneration to the copyright owner as prescribed in regulations. By virtue of this stipulation the digital library may, after paying reward, abstract or index the works published in newspapers or journals into database.

In addition, the Supreme People's Court of China reissues on 23 December 2003 a revised judicial interpretation titled "Interpretation on Application of Laws When Trying Dispute Cases Concerning Computer Network Copyright"20 in which a provision relating to the statutory license on online works was included. In article 2 of interpretation it states: works under protection of copyright law, includes the digitalized form of works described by copyright law in article 3. Other intellectual creations that unable to merge into the scope of works listed by the article 2 of copyright law under network environment but have the originality in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain tangible form, must be protected by people's court. Pursuant to article 3 of the interpretation, the works, already published in newspaper and periodicals or distributed on network, can be reproduced, excerpted by the network site without committing infringement if the works have been paid and designated the source, unless the works have been declared copyrighted by the owner of the copyright and network service providers who upload the works have been told that the works cannot be reproduced and excerpted without permission. But in case that the works which are reproduced and excerpted by the site go beyond the category concerned, such as the reproduce of audio and video products as well as computer software, it should be identified as infringement. These databases being compiled subject to statutory license shall be the priority project of digital library in its digitalized resource construction.

In the case to constructing a full-text database, however, digital library should act with care. Except those works that already fallen into the public domain, permission shall be acquired in advance from the copyright owners of works. According to the Provisions of Copyright on Compiling Digitalized Works promulgated by the National Copyright Administration of China, digital library "may acquire permission directly from copyright owner of the utilized work or from an organization for collective administration of copyright."

database Compiler and organization for collective administration of copyright

In digitalization of its holdings the digital library should, first of all, classify the materials to be digitalized in the light of their nature of copyright and then handle them respectively. Generally, documents in a library include three categories: works that are still in their term of copyright protection; works already entered into public sphere; and works that beyond the protection of copyright law, such as legal documents, governmental information and factual reports, etc. When using the works that have not entered into public domain to compile a database the digital library shall conclude beforehand a licensing contract with the copyright owners to obtain their permission. A licensing contract shall, pursuant to article 24 of China's copyright law, include the following basic clauses:
(l) the category of right licensed for exploitation of the work covered by the license;
(2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license;
(3) the geographic area and term of the license;
(4) the standard of remuneration and the method of payment;'
(5) the liability in case of breach of the contract; and
(6) any other matter that the contracting parties consider necessary.
In developing a database one major question the digital library confronted is how to make contacts with numerous copyright owners so as to acquire the permission from them. In practical operation, it is impossible for compiler to conclude the licensing contract with obligee one by one. So a practicable mode for solving this question is to authorize an organization of collective administration to arrange matters concerning copyright with copyright owners. At present, organ assuming functions of collective administration on copyright in China is the Copyright Protection Center of China (CPCC). Established in Beijing in 1998, CPCC is composed of several former collective management organizations on copyright such as the Copyright Agency of China (CAC), the Software Registration Center of China (SRCC), the Remuneration Collection and Distribution Center for the Use of Copyright of China (RCDCUCC). The main functions of CPCC include:
1. Copyright Registration: responsible for the registration of copyright in computer software, registration of pledge contracts on copyright, registration of copyright in various published works, verification and registration of publishing contracts of imported audio-video products, and public information.
2. Copyright Agency: to organize various negotiations on copyright trade home and abroad; to offer information and consultation services related to copyright trade; to act as an agent for copyright owners upon the latter's request, and to provide the service of selecting subjects of works to be published; to collect and distribute the remuneration for the use of copyright as entrusted by the copyright owners and users of the published works.
3. Legal Services: to offer legal consultations, mediation of copyright disputes and attorney for copyright litigation, and to offer long-standing legal services for copyright owners and organizations of copyright industry.
4. Copyright Authentication: To offer technological authentication for copyright disputes as entrusted by various judicial authorities and copyright administrations.
5. To offer information services on protection of copyright, to collect and disseminate various copyright protection information and to carry out copyright trade by e-commerce.
6. To edit and publish the journal China Copyright.
7. To carry out propagation work on the legal knowledge of copyright and to organize training for staff of the copyright industry.
8. To carry out other work related to copyright protection and copyright services.
Does everything in relation to copyright be trusted to a collective management organ will be fine? It is not simplicity itself. Some cases involving copyright disputes of database decided recently by courts deserve digital library's attention. On 16 March 2004 the Beijing University and other 10 universities and publishers in scientific and educational circles brought an action against VIP Information Company 21 on copyright infringement. The 11 plaintiffs complain respectively that the defendant, without plaintiffs' permission, duplicates and compiles by means of scanning the periodicals published by plaintiffs into his digitalized product, the "Chinese Scientific and Technological Periodicals Database", and sell it for profit. The plaintiffs hold that the defendant's action has seriously encroached upon the copyright on their compilations and the exclusive right of typographical arrangement of their periodicals and claim defendant for bearing civil liability for such remedies as ceasing the infringing act and paying compensation for damages. But the defendant refuses the plaintiffs' claim by saying that he has already signed a letter of authorization on copyright with the agent of the Remuneration Collection and Distribution Center for the Use of Copyright of China and a licensing contract on compiling digitalized product with the Copyright Protection Center of China in Chongqing municipality where the defendant is located and has paid for royalty. But the court did not adopted the defendant's defense and held that the defendant did not lodge the proofs to certify that the plaintiffs are members of the collective administrative organ of copyright or they have entrusted the said organ to manage their copyright matters, so the defendant has not been regarded as having obtained the license from plaintiffs even if he had concluded the licensing contracts with the collective administrative organs. The first intermediate court of Beijing decided that the defendant's action on compiling and selling the online version of the "Chinese Scientific and Technological Periodicals Database" has constituted an infringement and shall assume the legal responsibility of ceasing the infringing act and paying compensation for damages. From the judgement one may come to some conclusions: firstly, it does not belong to the sphere of statutory license to compile a full-text database by utilizing the works of a compilation; secondly, it does not to be consider as having acquired the right of using works by concluding a copyright licensing contract with collective administrative organ of copyright and paying the loyalty. It is important for a database compiler to ascertain in advance whether a copyright owner is a member of collective management organ of copyright and whether he has entrusted the said organ to manage his copyright matters, if not, once disputes is arisen, he will be put in a disadvantageous position.

From the data forecited one can conclude that the database, as an important information resource, reflects the developing status and levels of a country's information industry. Libraries, by virtue of digitalizing their holdings into diversified databases, will accord much convenience to the public in their accessing the documents in libraries. Meanwhile, since developing a database is expensive for great deal of money, manpower and creative labour will be spent on it, libraries will be in such a dangerous circumstance that their labour product will be infringed upon by unauthorized copy and transmission. So it is urgent to take some legal methods to protect the copyright of database. In China, though database has not been prescribed explicitly in copyright law, but in judicial practices it has been considered as a type of works and protected by law. It is believed that the Chinese legislation will give a distinct answer to this question.

【注释】
1.The text of bulletin in Chinese can be read from: http://www.cnnic.net.cn/download/2004/2004072002.pdf
2.Text of report in Chinese can be read from: http://www.cnnic.net.cn/download/manual/report20030330.pdf
3.Id.
4.Id.
5.Id.
6.Id.
7.Id.
8.For English version of the law please visit the website at http://www.chinaiprlaw.com/english/laws/laws10.htm
9.Text of the regulation in English may be traced from the China Legislative Information Network sponsored by the Legislative Affairs Office of the State Council P. R. China at http://www.chinalaw.gov.cn/
10.Id.
11.See Laws and Regulations of the People's Republic of China Governing Foreign-Related Matters (1991-1992),China Legal System Publishing House, 1994.3. at 612-619.
12.Id. At 651-653.
13. [281 F. 83; 1922 U.S. App. LEXIS 2056; 26 A.L.R. 571]
14.L.R. [1900]] A.C. 539
15.see item 2 of article of the convention, http://www.wipo.int/clea/docs/en/wo/wo020en.htm
16.See Laws and Regulations of the People's Republic of China Governing Foreign-Related Matters (1993), China Legal System Publishing House, 1994.3. at 612-619.
17.Id. at 86.
18.See the first issue of 1996 in the Gazette of the Supreme People's Court of the People's Republic of China
19.Official Journal Lo77, 27/03/1996 P.0020-0028, Http://europa.eu.int/eur-lex/en/search/search_oj.html
20.English version of the interpretation can be acquired from a fee-based website at http://www.isinolaw.com/
21.Judgment document of the case in Chinese can be traced from Beijing Court Network at http://bjgy.chinacourt.org/.