Data, Databases and Copyright Protection in South Africa, Part I

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by Dr. Tobias Schönwetter and Desmond Oriakhogba

Generally, open data initiatives are important means of promoting the constitutionally guaranteed fundamental rights of access to information, freedom to receive information, and right to education (ss32, 16(1)(b) and 29 Constitution of the Republic of South Africa). Such initiatives are also important in ensuring informed planning and policy making by government and citizen participation in governance, among others. A 2013 article in the Daily Maverick by Adi Eyal and a recent blog post by the IP Unit’s Eve Gray on climate data and the water crisis in Cape Town confirm that claims to copyright protection of data and databases containing publicly relevant data is a challenge to making such data open.  This raises questions as to the extent to which data and databases are indeed protected under the South African Copyright Act. This article is the first part in a series of blog posts with the main objective of examining the extent of copyright protection of data in South Africa. By way of providing background to the second part, it first discusses the broad issue of copyright protection in databases in South Africa. The second part will then address the important issue of whether and in which circumstances data enjoys copyright protection in South Africa.

The South AfricanCopyright Act does not contain a specific definition of the term “database”. However, article 1(2) of the EC Directive on the Legal Protection of Databases defines database broadly as a “[…] collection of independent works, data or materials arranged in a systematic methodical way and individually accessible by electronic or other means”. This definition has been accepted by South African courts (see National Soccer League v Gidani) and a leading authority in South African copyright law (Dean, p1-8, para2.4.9) as aligning with the provisions of the Copyright Act whichprotects databases under the class of literary works (s1 Copyright Act), i.e., as “tables and compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer”.

Databases may be in electronic or hardcopy format. Whatever the format, a database can only enjoy protection under the Copyright Act if it is original (s2 Copyright Act). This position is similar to most jurisdictions, including the US, but must be contrasted with the situation in the EU. Here, a distinction is drawn between “original” and “non-original” databases under the Directive on the Legal Protection of Databases (supra). Original databases are those meeting the EU originality standard of the “author’s own intellectual creation” and as such enjoy copyrightprotection under the Directive (article 3). On the other hand, non-original databases are those falling below the EU originality standard, but the creation of which involves “qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of [their] contents”. They are granted sui generisprotection under the Directive  “to prevent extraction and/or re-utilization of the whole or of a substantial part” (article 7) of their contents without some form of compensation for their creators. According to Pistorius, “[t]he “sui generis” right is [a] creation with no precedent in any international convention and no other jurisdiction has adopted the sui generis right. The distinction between “original” and “non-original” databases is also unique to the [EU]”.

The test for originality in South Africa follows the British common law traditional objective test of “Sweat of the brow” which means that for a work to be original, the author must have exerted sufficient (and not just trivial) degree of skill and labour in the creation of the work (Haupt v Brewers Marketing Intelligence). However, the Canadian intermediate approach of “skill and judgment” adopted in the celebrated CCH Canadian Ltd v Law Society of Upper Canadacase seems to be lurking around the South African copyright jurisprudence as recent judicial pronouncement in Moneyweb v Media24shows. In that case, the Gauteng High Court found that “while our law still regards the time and effort spent by the author as a material consideration in determining originality … the time and effort spent must involve more than a mechanical, or slavish, copying or existing material. In other words, there must be sufficient application of the author’s mind.”

The originality standard has been applied to several cases involving databases by the South African Courts. The cases included databases comprising catalogues and price list (Payen Components SA v Bovic CC), telefax users’ directory (Fax Directories v SA Fax Listings CC 1990 (2) SA 164 (D)) personal data of donors to a charitycampaign (Philanthropic Collections v Girls and Boys SA), medical practitioners’ practice information under the medical aid scheme (BHF v Discovery Health), and soccer fixtures and listings (National Soccer League v Gidani, supra), among others. As gleaned from these cases, the courts are willing to extend protection to databases even though less skill was involved in their creation so long as there is evidence of extensive labour in putting the databases together. But can such protection be extended to the data comprising the databases? Broadly put, to what extent, if at all, can data making up a database be protected under copyright law in South Africa? These important questions will be addressed in the next part of this series.