The law of copyright provides legal protection for works. This protection is achieved through various exclusive rights, granted to the copyright owner of the work at issue. These rights are limited in their duration and are subject to exceptions set forth by the applicable law.

The applicable legal system also defines who is deemed the author of the work and who is the owner of the rights attached to the work in question. The catalogue of rights in an eligible copyrightable work are mainly economic rights that give the copyright owner the ability to collect licensing fees in return for authorisation with respect to the exclusive rights in the work. Most legal systems also grant the author moral rights regarding the protected work.

A ‘Database’ has been defined as a qualified collection of material. The components of a database may be of any informational material, but the significant distinction, regarding copyright law, is those components that are protected by copyright and those which aren’t. In addition, copyright law requires that a creation be ‘original’ in order to become an eligible creation. Hence, the fundamental classification of databases requires the constituent parts of any given database to be examined and a decision to be made as to whether the assemblage of its elements is original within the meaning of copyright law. Thus, a database should be examined in two dimensions: content and structure.

Regarding content, database elements can be one of two categories, namely data or works. A work being a copyright subject matter while data being considered to be in the public domain. Database structure can be either original or non-original, depending on the test of ‘originality’ in any particular jurisdiction. Four categories of databases are available regarding this two-dimensional classification, which relate to the elements of the content and to the structure of the collection: original collection of works, original collection of data, non-original collection of data and non-original collection of works. Each category having different levels of protection, if any, by copyright law.

The applicable right for a particular work are determined within the sphere of a particular national law. However, in the global national law, national borders are meaningless. Databases are created in one country, probably using computers in another country and containing contributions from individuals in yet other countries. Databases are reproduced and distributed at electronic speed, ignoring any legal barriers that attempt to control these acts. Therefore, the main concern is to place databases within international copyright law.

The Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention”), although not providing a uniform copyright law, provided principles of private international law that are applicable to foreigners by virtue of any particular national law. The rights in a particular work are determined within a particular jurisdiction and are possible different according to the various copyright laws that will be applied. These differences are minimised by the principles set out in the Berne Convention, so in the most practical standards one may talk about global protection. This is achieved by the principle of national treatment, the definition of eligible creations and by setting minimum standards of protection.

The Berne Convention lists the works governed by it and since databases are not specifically mentioned in it could either fit into the list as a “collection” or “literary and artistic works”.

The Agreement on Trade Related Property Aspects (“TRIPS”) referred to databases and set up a framework for their protection. Its formula summarises and resolves the main controversies concerning database protection by using the fundamental approach that copyright in a database concerns its structure rather than its content. It is the mode of compilation that is protected and not the materials in question, which are assembled to create the database in question.