The Relationship Between Copyright and Data: Exploring the Legal Landscape

The Relationship Between Copyright and Data

Hello, welcome. My name is Thomas Margoni. I'm a professor of intellectual property law at CITIP, the Center for Intellectual Property and IT Law at the Faculty of Law KU Leuven. I'm very happy to be here with you today. Thank you very much to ELSA for organizing and for inviting me to this ELSA webinars on intellectual property. Today, we will be discussing a very interesting aspect. It's certainly very interesting to me. I hope I will be able to make it interesting to you as well, which is the relationship between copyright and data. And I think this is a very interesting and emerging field, because as we will see, this relationship has a direct impact on one of the most interesting and fast developing technologies of our time, that is to say artificial intelligence.

Data Protection and Copyright Law

But let's start with the beginning. So is data protected by copyright is the first question we should ask ourselves. And the answer, sometimes surprisingly, it's no. Copyright does not protect data. As a matter of fact, it's quite clear at the international and national copyright level, so the different type of legislation at the EU level, at the member state level, but also at the international level, at the level of the big international conventions that somehow regulate copyright.

International Copyright Conventions

The most famous of them and the oldest, it's certainly the Berne Convention, but we have a more recent one. Berne was signed in 1886. It has been constantly updated, and then it has been integrated with, for example, the WCT, the World Copyright Treaty, the WIPO Copyright Treaty, and TRIPS. The trade related aspects of IP signed within the WTO framework. Well, in all these international conventions and agreements, the fact that principles, facts, data as such are not protected is quite clearly established. You can see some legislative references.

Idea-Expression Dichotomy

But even where, for example, in Berne, where this is not stated through what has become famous as the idea-expression dichotomy, which we should also call fact- expression dichotomy. Even in Berne, it's quite clear and apparent and commonly accepted that only original expressions are protected. So ideas, the way in which we usually introduce copyright law to students, are not protected as such. An idea, for corporate purposes, is free for everyone to benefit and even to copy from it. What attracts protection is not the idea, is not the internal dimension, but is its original expression. So only once this idea has taken the form of an original expression, then this original expression becomes protectable by copyright. And it's fair to say that protection starts automatically in the moment in which creation takes place. So as long as we have an original expression, we do not need to perform any other additional activities such as, for example, registration or deposit. Copyright law operates automatically, and this is an interesting feature because we know, for example, in the field of patents, this aspect works differently. So patents need to be registered.

EU Copyright Law and Data

So, so far we know that copyright, at least copyright theory, clearly establishes that principle facts and ideas are not protected, but their original expression can attract protection. In the EU, this distinction, as I said, which is often referred to as the ideafact expression dichotomy, has both statutory and judicial recognition. We can find it at many levels in the EU system of sources in the area of copyright law. The software directive, the database directive, the recent directive on copyright in the digital single market, all say, all clarify and give context to this general principle. But even in the case law of the European Court of Justice, which is extremely relevant in the field of copyright, as it is in many other fields of EU law, in a series of cases, the court, I was saying, has had the possibility to clarify, once again, this basic principle.

Alternative Data Protection Mechanisms

Now, the fact that copyright law does not protect data doesn't mean that data as such cannot be protected at all by other fields of law. As a matter of fact, we can find forms of protection outside the field of copyright for data. It depends on the type of data and it depends also on the type of protection. So, for example, within the field of, or close to the field of intellectual property, we have the area of trade secrets or confidentiality. And here often data is protected through these tools, but of course here we are not speaking of a fully fledged property right, meaning that copyright gives you much stronger remedies. Whereas in the case of trade secrets, once the trade secret is not secret anymore, there are very little remedies for you to control the further propagation of that information. Similarly, contracts, you can obviously, you know, agree on a contractual basis with a partner, a business partner or a customer that certain data has to be treated in a certain way. And you don't need an underlying property right for this contract to be enforceable. But of course, again, once again, when we look at it in terms of enforceability of remedies, but also in terms of whether that specific agreement has been correctly concluded, contracts may offer slightly different advantages or disadvantages if we compare this to a property right. And certainly, if you can build your contractual framework on the top of underlying property rights, this usually gives you a much stronger way to regulate the way in which you want this information or data to propagate.

Personal Data Protection

Personal data protection is another field. Maybe I should have clarified this at the beginning, but if it is not clear, clarify it now. I'm not talking about personal data here. In fact, I'm talking about almost anything else other than personal data. So all the data that you can think of, but not the case of personal data, because as these slides suggest, the field of personal data receives its own dedicated regulation through the field of personal data protection. Obviously, the GDPR in the EU has set the scene for a quite advanced form of protection of personal data. And we're not looking at this, but even here, the GDPR and personal data protection legislation, this is the important element, only regulates certain data. That is to say, that relates to an identified or identifiable person. So again, a quite different form of approach to the regulation of data that in this case is very specific to the nature of data.

Neighboring Rights and Related Rights

We don't look at all these areas. We stay for a number of reasons within the field of copyright. And within the field of copyright, as we said, we at least, I'm sorry to have to make this clarification over and over, at least in the field of copyright theory, we more or less agree internationally, everyone, that data as such is not protected. But there is another field that usually started together with copyright, but that is not really copyright as the name suggests. This field is called neighboring rights or rights related to copyright. As we said, copyright protects works of authorship in the literature and artistic field. And the requirements here are the presence of an original expression. Sousually, what do we mean by literature and artistic fields? Well, examples are books, sculptures, paintings, all those kind of expressions that you normally connect to the literary field. So not only books, of course, but also poetry, playwrights, etc. Artistic, not only visual arts, but also, for example, musical compositions. But this field really has expanded substantially over time, so much so that nowadays it also includes software or databases. However, this is the field of copyright and copyright here is only triggered when, within this field, we have an original expression. There is a different connected field, which is, as we introduced it, the field of related rights to copyright. And you have to think of related rights not really as a homogeneous category, but broadly speaking, we could identify that as a weaker form of protection. Weaker meaning that the extent, so how many years. Copyright is maybe quite long, usually 70 years plus the author life. So the entire life of the author plus 70 years. In the case of neighboring rights, we don't have a standard term, but it can go from two years to 50 years since creation. Usually, they are not connected to the life of the author with very minor exceptions. So a weaker form of protection, for example, term, but also in terms of the right afforded to you, usually there are no more rights connected with neighboring rights, usually not in the 100% of the cases. And most importantly, these forms of neighboring rights protection relates to activities that are, yes, connected to copyright, that's why are called related or neighboring rights, but are not really part of the creative process.

Examples of Neighboring Rights

And here the examples that you should think of are the form of protection offered to phonograms. So when you, for example, when you listen to a song, an mp3 or, you know, whatever format or a streaming. Really, that's not what most of the times it's not one, just one work from a copyright point of view, but there is a copyright, for example, in the lyrics, a different copyright in the musical composition, and there is usually a related right in the performance. So the execution of that song, so the artists that are in that very same song singing and playing the instruments receive a form of protection that is different from the copyright that protects the lyrics of that song and the copyright that protects the music. And then an additional layer, which in this case protects the investment that the phonogram producer made in recording the phonogram.

Investment vs. Creativity in Protection

So really here, the field of performance is a bit borderline because it's a neighboring right but I think many would agree that there is a difference in terms of original contribution between performing artists and phonogram producer or broadcaster, where really what we are trying to protect is the investment in setting up all the infrastructure and machinery, that is needed to protect, to create these forms of expressions. So because what here we protect is the investment, is not creativity, usually we do not need a requirement of originality. That's very important.

Sui Generis Right for Databases

All this is very important because it allows us to introduce a very peculiar form of neighboring related right, even though this right is so peculiar that the best name we could give it is swigenerist. And certain legal systems don't really qualify it as a related right. They just classify it as a swigenerist right. But I think that conceptually can be broadly put in this category. And it is a form of protection against substantial extractions of data from qualifying databases.