COPYRIGHT PART I INTRODUCTORY PROVISIONS Citation, commencement and extent 1 1 These Regulations may be cited as the Copyright and Rights in Databases Regulations 1997. 2 These Regulations come into force on 1st January 1998. 3 These Regulations extend to the whole of the United Kingdom. Implementation of Directive 2 1 These Regulations make provision for the purpose of implementing— a Council Directive No. 96/9/ EC of 11 March 1996 on the legal protection of databases, ... b certain obligations of the United Kingdom created by or arising under the EEA Agreement so far as relating to the implementation of that Directive , and c an Agreement in the form of an exchange of letters between the United Kingdom of Great Britain and Northern Ireland on behalf of the Isle of Man and the European Community extending to the Isle of Man the legal protection of databases as provided for in Chapter III of that Directive. 2 In this Regulation “the EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 , as adjusted by the Protocol signed at Brussels on 17th March 1993 . Interpretation 3 In these Regulations “the 1988 Act ” means the Copyright, Designs and Patents Act 1988 . Scheme of the Regulations 4 1 The 1988 Act is amended in accordance with the provisions of Part II of these Regulations, subject to the savings and transitional provisions in Part IV of these Regulations. 2 Part III of these Regulations has effect subject to those savings and transitional provisions. PART II AMENDMENT OF THE COPYRIGHT, DESIGNS AND PATENTS ACT 1988 Copyright in databases 5 In section 3(1), in the definition of “literary work”— a in paragraph (a) after “compilation” insert “other than a database”; b at the end of paragraph (b) leave out “and”; c at the end of paragraph (c) insert “and (d) a database;”. Meaning of “database” 6 After section 3 insert— Databases 3A 1 In this Part “database” means a collection of independent works, data or other materials which— a are arranged in a systematic or methodical way, and b are individually accessible by electronic or other means. 2 For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation. . Meaning of “adaptation” in relation to database 7 In section 21 (infringement by making adaptation or act done in relation to adaptation), in subsection (3)— a in paragraph (a), for “other than a computer program or” substitute “other than a computer program or a database, or in relation to a”, and b after paragraph (ab) insert— ac in relation to a database, means an arrangement or altered version of the database or a translation of it; . Research 8 1 In section 29 (research and private study), in subsection (1), after “literary” insert “work, other than a database, or a”. 2 After subsection (1) of that section insert— 1A Fair dealing with a database for the purposes of research or private study does not infringe any copyright in the database provided that the source is indicated. . 3 After subsection (4) of that section insert— 5 The doing of anything in relation to a database for the purposes of research for a commercial purpose is not fair dealing with the database. . Permitted acts in relation to databases 9 After section 50C insert— Databases: permitted acts Acts permitted in relation to databases. 50D 1 It is not an infringement of copyright in a database for a person who has a right to use the database or any part of the database, (whether under a licence to do any of the acts restricted by the copyright in the database or otherwise) to do, in the exercise of that right, anything which is necessary for the purposes of access to and use of the contents of the database or of that part of the database. 2 Where an act which would otherwise infringe copyright in a database is permitted under this section, it is irrelevant whether or not there exists any term or condition in any agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296B, void). . Avoidance of certain terms 10 After section 296A insert— Databases Avoidance of certain terms relating to databases 296B Where under an agreement a person has a right to use a database or part of a database, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict the performance of any act which would but for section 50D infringe the copyright in the database. . Defined expressions 11 In section 179 (index of defined expressions), in the appropriate place in alphabetical order insert— database section 3A(1) original (in relation to a database) section 3A(2) . PART III DATABASE RIGHT Interpretation 12 1 In this Part— “database” has the meaning given by section 3A(1) of the 1988 Act (as inserted by Regulation 6); “extraction”, in relation to any contents of a database, means the permanent or temporary transfer of those contents to another medium by any means or in any form; “insubstantial”, in relation to part of the contents of a database, shall be construed subject to Regulation 16(2); “investment” includes any investment, whether of financial, human or technical resources; “jointly”, in relation to the making of a database, shall be construed in accordance with Regulation 14(6); “lawful user”, in relation to a database, means any person who (whether under a licence to do any of the acts restricted by any database right in the database or otherwise) has a right to use the database; “maker”, in relation to a database, shall be construed in accordance with Regulation 14; “ Marrakesh beneficiary ” has the meaning given by section 296ZE(1) of the 1988 Act ; “ national of the United Kingdom ” has the meaning given by section 178 of the 1988 Act ; “re-utilisation”, in relation to any contents of a database, means making those contents available to the public by any means; “substantial”, in relation to any investment, extraction or re-utilisation, means substantial in terms of quantity or quality or a combination of both. 2 The making of a copy of a database available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public shall not be taken for the purposes of this Part to constitute extraction or re-utilisation of the contents of the database. 3 Where the making of a copy of a database available through an establishment which is accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of paragraph (2). 4 Paragraph (2) does not apply to the making of a copy of a database available for on-the-spot reference use. 5 Where a copy of a database has been sold within the EEA , the United Kingdom or the Isle of Man by, or with the consent of, the owner of the database right in the database, the further sale within the EEA , the United Kingdom or the Isle of Man of that copy shall not be taken for the purposes of this Part to constitute extraction or re-utilisation of the contents of the database. Database right 13 1 A property right (“database right”) subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. 2 For the purposes of paragraph (1) it is immaterial whether or not the database or any of its contents is a copyright work, within the meaning of Part I of the 1988 Act. 3 This Regulation has effect subject to Regulation 18. The maker of a database 14 1 Subject to paragraphs (2) to (4), the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining, verification or presentation shall be regarded as the maker of, and as having made, the database. 2 Where a database is made by an employee in the course of his employment, his employer shall be regarded as the maker of the database, subject to any agreement to the contrary. 3 Subject to paragraph (4), where a database is made by Her Majesty or by an officer or servant of the Crown in the course of his duties, Her Majesty shall be regarded as the maker of the database. 4 Where a database is made by or under the direction or control of the House of Commons or the House of Lords— a the House by whom, or under whose direction or control, the database is made shall be regarded as the maker of the database, and b if the database is made by or under the direction or control of both Houses, the two Houses shall be regarded as the joint makers of the database. 4A Where a database is made by or under the direction or control of the Scottish Parliament, the Scottish Parliamentary Corporate Body shall be regarded as the maker of the database. 5 For the purposes of this Part a database is made jointly if two or more persons acting together in collaboration take the initiative in obtaining, verifying or presenting the contents of the database and assume the risk of investing in that obtaining, verification or presentation. 6 References in this Part to the maker of a database shall, except as otherwise provided, be construed, in relation to a database which is made jointly, as references to all the makers of the database. First ownership of database right 15 The maker of a database is the first owner of database right in it. Acts infringing database right 16 1 Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database. 2 For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents. Term of protection 17 1 Database right in a database expires at the end of the period of fifteen years from the end of the calendar year in which the making of the database was completed. 2 Where a database is made available to the public before the end of the period referred to in paragraph (1), database right in the database shall expire fifteen years from the end of the calendar year in which the database was first made available to the public. 3 Any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment shall qualify the database resulting from that investment for its own term of protection. 4 This Regulation has effect subject to Regulation 30. Qualification for database right 18 1 Database right does not subsist in a database unless, at the material time, its maker, or if it was made jointly, one or more of its makers, was— a an individual who was a national of the United Kingdom or habitually resident within the United Kingdom , b a body which was incorporated under the law of any part of the United Kingdom and which, at that time, satisfied one of the conditions in paragraph (2), ... c a partnership or other unincorporated body which was formed under the law of any part of the United Kingdom and which, at that time, satisfied the condition in paragraph (2)(a) , d an individual who was habitually resident within the Isle of Man, e a body which was incorporated under the law of the Isle of Man and which, at that time, satisfied one of the conditions in paragraph (2A), or f a partnership or other unincorporated body which was formed under the law of the Isle of Man and which, at that time, satisfied the condition in paragraph (2A)(a). 2 The conditions mentioned in paragraphs (1)(b) and (c) are— a that the body has its central administration or principal place of business within the United Kingdom , or b that the body has its registered office within the United Kingdom and the body’s operations are linked on an ongoing basis with the economy of the United Kingdom . 2A The conditions mentioned in paragraphs (1)(e) and (f) are— a that the body has its central administration or principal place of business within the Isle of Man, or b that the body has its registered office within the Isle of Man and the body’s operations are linked on an ongoing basis with the economy of the Isle of Man. 3 Paragraph (1) does not apply in any case falling within Regulation 14(4). 4 In this Regulation— a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b “the material time” means the time when the database was made, or if the making extended over a period, a substantial part of that period. Avoidance of certain terms affecting lawful users 19 1 A lawful user of a database which has been made available to the public in any manner shall be entitled to extract or re-utilise insubstantial parts of the contents of the database for any purpose. 2 Where under an agreement a person has a right to use a database, or part of a database, which has been made available to the public in any manner, any term or condition in the agreement shall be void in so far as it purports to prevent that person from extracting or re-utilising insubstantial parts of the contents of the database, or of that part of the database, for any purpose. Exceptions to database right 20 1 Database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if— a that part is extracted from the database by a person who is apart from this paragraph a lawful user of the database, b it is extracted for the purpose of illustration for teaching or research and not for any commercial purpose, and c the source is indicated. 2 The provisions of Schedule 1 specify other acts which may be done in relation to a database notwithstanding the existence of database right. Exceptions to database right: deposit libraries 20A 1 Database right in a database is not infringed by the copying of a work from the internet by a deposit library or person acting on its behalf if— a the work is of a description prescribed by regulations under section 10(5) of the 2003 Act, b its publication on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and c the copying is done in accordance with any conditions so prescribed. 2 Database right in a database is not infringed by the doing of anything in relation to relevant material permitted to be done under regulations under section 7 of the 2003 Act. 3 Regulations under section 44A(3) of the 1988 Act exclude the application of paragraph (2) in relation to prescribed activities in relation to relevant material as (and to the extent that) they exclude the application of section 44A(2) of that Act in relation to those activities. 4 In this Regulation— a “ the 2003 Act ” means the Legal Deposit Libraries Act 2003; b “ deposit library ” and “ relevant material ” have the same meaning as in section 7 of the 2003 Act. Exceptions to database right: Marrakesh beneficiaries 20B Database right in a database is not infringed by the making of an accessible copy of a work under sections 31A, 31B or 31BA of, or paragraphs 3A, 3B or 3C of Schedule 2 to, the 1988 Act for the benefit of a Marrakesh beneficiary. Acts permitted on assumption as to expiry of database right 21 1 Database right in a database is not infringed by the extraction or re-utilisation of a substantial part of the contents of the database at a time when, or in pursuance of arrangements made at a time when— a it is not possible by reasonable inquiry to ascertain the identity of the maker, and b it is reasonable to assume that database right has expired. 2 In the case of a database alleged to have been made jointly, paragraph (1) applies in relation to each person alleged to be one of the makers. Presumptions relevant to database right 22 1 The following presumptions apply in proceedings brought by virtue of this Part of these Regulations with respect to a database. 2 Where a name purporting to be that of the maker appeared on copies of the database as published, or on the database when it was made, the person whose name appeared shall be presumed, until the contrary is proved— a to be the maker of the database, and b to have made it in circumstances not falling within Regulation 14(2) to (4). 3 Where copies of the database as published bear a label or a mark stating— a that a named person was the maker of the database, or b that the database was first published in a specified year, the label or mark shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved. 4 In the case of a database alleged to have been made jointly, paragraphs (2) and (3), so far as is applicable, apply in relation to each person alleged to be one of the makers. Application of copyright provisions to database right 23 The following provisions of the 1988 Act apply in relation to database right and databases in which that right subsists as they apply in relation to copyright and copyright works— sections 90 to 93 (dealing with rights in copyright works) sections 96 to 102 (rights and remedies of copyright owner and exclusive licensee) sections 113 and 114 (supplementary provisions relating to delivery up) section 115 (jurisdiction of county court and sheriff court). Licensing of database right 24 The provisions of Schedule 2 have effect with respect to the licensing of database right. Database right: jurisdiction of Copyright Tribunal 25 1 The Copyright Tribunal has jurisdiction under this Part to hear and determine proceedings under the following provisions of Schedule 2— a paragraph 3, 4 or 5 (reference of licensing scheme); b paragraph 6 or 7 (application with respect to licence under licensing scheme); c paragraph 10, 11 or 12 (reference or application with respect to licence by licensing body). 2 The provisions of Chapter VIII of Part I of the 1988 Act (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under this Part. 3 Provision shall be made by rules under section 150 of the 1988 Act prohibiting the Tribunal from entertaining a reference under paragraph 3, 4 or 5 of Schedule 2 (reference of licensing scheme) by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent. PART IV SAVINGS AND TRANSITIONAL PROVISIONS Introductory 26 Expressions used in this Part which are defined for the purposes of Part I of the 1988 Act have the same meaning as in that Part. General rule 27 Subject to Regulations 28 and 29, these Regulations apply to databases made before or after 1st January 1998 . General savings 28 1 Nothing in these Regulations affects any agreement made before 1st January 1998. 2 Nothing in these Regulations affects any agreement made after 31st December 1997 and before 1st November 2003 in so far as the effect would only arise as a result of the amendment of these Regulations by the Copyright and Rights in Databases (Amendment) Regulations 2003 . 3 No act done in respect of any database, in which database right subsists by virtue of the maker of the database (or one or more of its makers) falling within one of the provisions contained in Regulations 14(4) and 18(1)(a), (b) and (c),— a before 1st January 1998, or b after 31st December 1997, in pursuance of an agreement made before 1st January 1998, shall be regarded as an infringement of database right in the database. 4 No act done in respect of any database, in which database right subsists by virtue of its maker (or one or more of its makers) falling within one of the provisions contained in Regulation 18(1)(d), (e) and (f),— a before 1st November 2003, or b after 31st October 2003, in pursuance of an agreement made before 1st November 2003, shall be regarded as an infringement of database right in the database. Saving for copyright in certain existing databases 29 1 Where a database— a was created on or before 27th March 1996, and b is a copyright work immediately before 1st January 1998 , copyright shall continue to subsist in the database for the remainder of its copyright term. 2 In this Regulation “copyright term” means the period of the duration of copyright under section 12 of the 1988 Act (duration of copyright in literary, dramatic, musical or artistic works). Database right: term applicable to certain existing databases 30 Where— a the making of any database is completed on or after 1st January 1983, and before 1st January 1998, and b either— i the database is a database in which database right subsists by virtue of the maker of the database (or one or more of its makers) falling within one of the provisions contained in Regulations 14(4) and 18(1)(a), (b) and (c) and database right begins to subsist in the database on 1st January 1998, or ii the database is a database in which database right subsists by virtue of its maker (or one or more of its makers) falling within one of the provisions contained in Regulation 18(1)(d), (e) and (f) and database right begins to subsist in the database on 1st November 2003, then database right shall subsist in the database for a period of fifteen years beginning with 1st January 1998. Ian McCartney, Minister of State, Department of Trade and Industry