Database as an object of intellectual property

Calling a taxi in one click, paying for goods online, choosing food in an app, ordering a government service, using a personal discount – all this is possible thanks to the digital economy and databases. There are more and more of them, Database as an object of intellectual property rights: what is missing in regulation and they need legal protection. But the wording of the rules does not provide answers to all questions. There is no certainty in judicial practice either: the most high-profile case of recent years about the use of the VKontakte database will soon be considered for the second time by the Intellectual Property Court. Lower courts have twice taken opposite positions.

The IT sphere is one of those that is far ahead of the law, so legal structures do not fully reflect the essence of modern databases, says IP practice lawyer, patent attorney of AB Andrey Gorodissky and Partners Anatoly Sherstin. And gaps in legal gambling data japan regulation affect the protection of copyright holders, as will be shown below.

Creative bases

The copyright for such an object belongs to the “author who selected or arranged the materials (compilation)”. Creative databases cannot telegram as a marketing tool be those that are created without creative efforts – they are filled automatically alphabetically.It is unclear why the legislator has focused on the work of collecting, processing and arranging materials, comments NEVSKY IP Law senior aol email list lawyer Angelina Skvortsova. “Those who create content for a specific purpose, which is essentially the most important thing in the database — what people are willing to pay for — have remained behind the scenes,” she explains. “The value of the database, in my opinion, is not so much in the sequence of materials, but in what kind of materials they are.” The state of affairs affects the protection of copyright holders and requires changing the wording in the Civil Code, says Skvortsova.

It is not always possible to recognize one component element of a database as a result of intellectual activity. But the person who develops these elements must prove that, according to the meaning of the Civil Code, he is also a manufacturer, and did not just write documents of 10-60 sheets for fun, which constitute the database.

Angelina Skvortsova

The second type of bases is investment, about them in the next card.

Investment bases

We are talking about databases, the creation (processing, presentation) of which requires significant financial, material, organizational and other costs (Part 1 of Article 1334 of the Civil Code). The manufacturer of such an object has the exclusive right to extract materials from it and use them in any way.It is unclear what information elements are, says Versus.legal senior lawyer Sergey Kovalkov: “If we are talking about a social network user base, then what is an information element? A card with information about the user or his full name? Otherwise, it is difficult to register with Rospatent or protect the rights to databases that contain a small number of very informative cards.

This ambiguity with the concept of an information element limits the ability to protect small databases containing detailed information on each card.

Sergey Kovalkov

If the database contains less than 10,000 independent elements, an expert assessment will be required.

Exclusive right of the database manufacturer

As a general rule, no one may extract materials from a database and use them without the consent of the copyright holder (Part 1 of Article 1334 of the Civil Code). The law defines such a process as the transfer of the entire contents of a database or a significant part of the materials that comprise it to another information carrier using any technical means and in any form.This wording is not enough to fully protect the database copyright holder, Kovalkov believes. According to him, the law does not clearly answer the question of whether it is possible to distribute databases if the extraction of materials was legal (for example, under a license agreement) The law does not provide answers to these questions.

In addition, Kovalkov adds, the current regulation does not answer whether an exclusive right to a database arises if several people participate in its creation. And if it does, who owns the rights?

Judicial practice

There is little case law on this topic, experts say. The most famous case is VKontakte versus Double .

VKontakte defends user database in appeal

Initially, the Moscow Arbitration Court agreed with these arguments and rejected the claim to recognize Double’s actions as illegal. The Intellectual Property Court sent the case back for a new trial and ordered a forensic examination.

. The appeal court again ruled in favor of VKontakte on the same grounds as last time. Now it’s back to the Intellectual Property Court, which has scheduled a hearing for September 21, 2022.

The plaintiff demanded to stop the violation of his intellectual property rights: the defendant extracted resumes from the hh.ru database and provided access to them without the knowledge of the recruitment portal. The defendant objected that he cooperated with companies that paid for access to hh.ru and provided them with tools for processing resumes and calling applicants.

The first instance refused, the Moscow City Court “overrode” its decision. In their opinion, the plaintiff did not prove that the defendant, Stafori, used access to the closed (paid) part of the resume database or gave users this access. The courts referred to paragraph 3 of Article 1335.1 of the Civil Code. Head Hunter did not prove such facts, the courts decided.

The courts qualified the transaction as a simple partnership agreement (Chapter 55 of the Civil Code) – a combination of contributions and joint actions of two or more persons without forming a legal entity to make a profit or for another legal purpose. The courts rejected the defendant’s arguments that the agreement contained elements of a contract for a copyright order. He also pointed out that this was a contract for the provision of services for a fee, namely, the development of working materials on the topic. But the judges did not accept his arguments, pointing out, in particular, the condition on the equal distribution of profits.