Feasibility of Data Protection under the Copyright Act 2023: A New Approach?

In order to get intellectual property (IP) protection, a product ought to be a creation of mind. In this regard, at times, a product must also fulfil other criteria, such as novelty, utility, originality etc based on the kind or manner of IP protection. Raw data does not invite IP protection as it is not creation of human mind. On the other hand, public interest supports that raw data shall be kept open to all as opposed to anything that shall be protected through IP mechanisms. However, business data differs from raw data in many respects. Business data helps analyse the market and take decisions on consumers and other relevant market aspects. Therefore, those data ought to be kept out of reach of the competitors, thereby indicating that business data does have economic value. Similarly, human efforts go into transforming raw data into business data, such as data compilation, data analysis, creative arrangement, annotation and selection of data, database etc.

Copyright protection is given to database and digital work under section 14 of the Act and as per section 26, such protection will extend to 60 years after first publication of the digital work.

Copyright mechanisms within IP law is used to protect data compilation in many jurisdictions. Normally two systems are dominant. One is the EU model of database protection where database is protected through copyright; and if data compilation does not fall under the definition of database but involves human efforts and creativity, then protection is rendered through sui generis system. The other system is to bring database and data compilation within the scope of literary works and to render protection if data compilation meets other conditions of copyright such as originality, expression.

The Copyright Act, 2023 is a new legislation that deals with copyright matters in quite a sophisticated way by repealing the earlier Copyright Act of 2000. The Act of 2023 incorporated the EU model of data protection (though not entirely). The Act includes database as copyrightable work under section 2(11)(h). The term 'database' is defined under section 2(16) as collection of original works arranged in electronic or any other methodical way which is the expression of the talent of the creator, and which is accessible through electronic or other means. The definition stipulates three elements of database; firstly, it is a collection of independent works in electronic or other methodical way; secondly, the expression of talent of the creator is evident in the work; and thirdly, the work is accessible through electronic or other means.

Definition of database under the Act is less inclusive than that of the EU model because the EU definition considers collection of independent works, data, or other materials within the scope of database whereas the Act sees database as collection of independent work. For this reason, a creative data compilation with business value will potentially be out of the scope of database. Again, the Act has taken a new approach to deal with the work in digital arena. The repealed Copyright Act of 2000 followed the Indian approach of bringing digital work within the purview of literary work but in the new Act, digital work is independently defined and made copyrightable with some special provisions.

Section 2(10) defines information and technology oriented digital work as a creative work made or used by computer, mobile phone, other digital machine by processing data and information for the purpose of obtaining specific results. Here digital work is widely defined that will include all digital machine oriented creative works such as software, data compilation, data analysis, creative arrangement, annotation, and selection of data etc. 

Section 2(23) states that owner of the database and digital work will be the creator of the work which can be both natural and juristic persons. Copyright protection is given to database and digital work under section 14 of the Act and as per section 26, such protection will extend to 60 years after first publication of the digital work. Owner of the copyrighted work gets right to sue for compensation, injunction, and other civil remedy in case of infringement of copyright. District Judge court is set as forum to seek the civil remedy for copyright infringement and section 100 provides for a penalty up to four years of imprisonment or fine up to TK four lacs for sale of copyrighted digital work for profit. If not for profit, the penalty will be imprisonment up to three months or fine up to TK 25 thousand. For each repeated offence, the offender shall be liable to imprisonment up to five years or fine up to TK 5 lacs.

The writer is Assistant Judge, Bangladesh Judicial Service.