July 6, 2010

Database Protection in India

The present legal environment in India grants protection to databases under the Copyright Act 1957. The judiciary has interpreted this protection utilizing the ‘sweat of the brow’ theory as applied in Feist Publications, Inc. v Rural Telephone Service Co.

Enlarging the area of protection, Mr. Praveen Dalal (commentator on Cyber-law India) argues about protection available for databases in India as follows :

(1) Article 300A of the Constitution of India, i.e. right to property that is a "Constitutional right",
[point to consider - scholars around the world still debate whether copyrights and other IPRs are necessarily full fledged "property". ]

(2) Under the provisions of the Copyright Act, 1957 r/w Article 10 (2) of the TRIPS Agreement, and

(3) Under the IT Act, 2000.

In the first case the US supreme court in 1991 had stressed on the arrangement of the actual compilation in a database which can be copyrighted also is know as the originality test and not the sweat of brow test until this case came up the sweat of brow test was being followed in the US according to which even a factual compilation of a database would amount to copyright. Now the issue here is India what is the position it does not seem to be clear where in cases like Burlington corporation V. Rajnish Chibber the Delhi high court had uphelded a mere factual compilation of a database as copyright so what is the right test to apply in the Indian Context the originality or the sweat of Brow