The definition of the term ‘database’ is essential mainly within the context of introducing a sui generis right for database protection. In fact, international measures addressing database copyright refer to ‘compilations’ although it is understood that the objects of protection are databases. However, the introduction of a new intellectual property right demands a precise definition regarding its object of protection. It seems that the accepted legal definition of a ‘database’, for the purpose of intellectual property law, is modeled on the definition given in the European Union Database Directive. The definition is as follows:

‘database’ 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.

The definition implies that a database is based upon pre-existing materials and will not necessarily be performed by the originator or right-holder of the materials on which the database is based. Furthermore, incorporation of materials in a database is subject to any right in those materials. This implies that the rights in the databases are distinct from the rights in the underlying materials that form the database and do not extend to such materials.

The significant distinction is that between unprotected and protected works or data and works respectively. Works are protected in their own rights, whereas data is normally in the public domain. The category of ‘other materials’ is of a general nature. Materials in this sense could be in any form, so different kinds of expressed information may be included in a particular database. For instance, segments of musical or artistic works which don’t amount to works, might be considered as materials.

Indeed, the Database Directive provides not less than three qualifying attributes. Firstly, the materials incorporated into the database have to be ‘independent’. This presumably means that each of the items included in the database should be known and recognised. Secondly, the materials have to be arranged in a systematic or methodical way. Thirdly, the materials are individually accessible by electronic and other means. This last attribute is closely related to the ‘independent’ attribute. If the items in the database could be ‘individually accessible’ then they are identified and discrete items.

The requirement of ‘systematic or methodical arrangement’ is slightly more confusing. If ‘arrangement’ is required, it suggest that any arrangement is sufficient unlike copyright protection where a requirement exists for the arrangement must be original. If the arrangement of materials in a database, at least in electronic ones, are done by the software employed in creating the database and are changeable according to the software user’s requests, then what is the meaning or arranged materials?

The ‘systematic and methodical’ requirement seems to assert the structured nature of databases. A database, by its inherent nature, information with respect to the materials, such as description, location, relationship to other materials etc... This process is probably the ‘systematic arrangement’ requirement.

 The objective of the Database Directive, namely leaving the protection of computer programs to be dealt with by the Software Directive is very clear. It did this by confining the Database Directive to ‘databases’ as distinguished from ‘computer programs’. However, the distinction between these two entities is not as clear-cut. It is true that data processed and presented by computer programs could form part of the coding of a particular program. Once this particular program is compiled to form an executable object code, the distinction between the data and the set of instructions that form the ‘computer program’ is inseparable. In this case, one should make a logical distinction between the data and the computer program, and not a physical distinction based on the examination of the converged coding. This means that the test for distinguishing between data and computer programs is the examination of the purpose, the content and the context of the information at issue. If this information were intended to control the flow, the processing, the manipulation and the presentation of objects held in the computer storage, this would be a ‘computer program’.