International database protection

Background
International protection for databases and other collections of information raise legal issues relating to standards, scope, conditions, and duration of protection. The threshold issue is the standard of creativity required to justify protection under existing copyright laws and copyright treaties.

The Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention") is the preeminent treaty in the field of copyright protection. Countries bound by the 1948 Brussels text (and subsequent versions) of the Berne Convention are obligated to protect "[c]ollections of literary and artistic works such as encyclopedias and anthologies which, by reason of the selection or arrangement of their contents, constitute intellectual creations."

The references to "literary and artistic works" and "intellectual creations" mean that the Berne Convention may protect certain creative databases but presumably does not extend to protection for noncreative databases. Moreover, the specific reference to "collections of literary and artistic works" may call into question copyright protection of databases that consist of noncopyrightable data elements. The specific examples of protected collections &mdash; encyclopedias and anthologies, which consist of individual copyrightable contributions &mdash; confirm the doubt about protection for collections of noncopyrightable material. In fact, however, the most valuable databases frequently comprise noncopyrightable data elements that are selected, arranged, or organized in a way that creates economic value.