Evaluating the copyright protection of databases in South Africa: A comparative analysis with the European Union

• Pages: 56-79
• Author: Moleya, N. I.
• Published date: 22 January 2021
• Citation: (2020) IPLJ 56
• Date: 22 January 2021

56

EVALUATING THE COPYRIGHT

PROTECTION OF DATABASES IN

SOUTH AFRICA: A COMPARATIVE

ANALYSIS WITH THE EUROPEAN

UNION

 

Attorney of the High Cou rt of South Africa

ABST RAC T

This work offers a co mparative evaluation of t he South African a nd European Union (E U)

copyright pro tection of databases. The work al so considers how the original ity standard

in the Copyr ight Amendment Bill is li kely to affect the copyrig ht protection of databases

in South Afr ica. The work also co nsiders the int ersection be tween the prot ection of

databases a nd competition and the inte rface between the protec tion of databases and the

exercise of cert ain constitutional r ights in both jurisdict ions. The main conclusion of the

work is that the South A frican copyrig ht standard for protect ing databases is too low and

should be revised t o accommodate cert ain competition law concer ns and the exercise of

certain c onstitutional rig hts.

KEYWORDS: Datab ases; copyright; c ompetition; const itutional right s; South Africa; EU

  

Over the years, common law jur isdictions have, without demur, applied the

‘sweat of the brow’ test as the basis for protecting copyrig ht. However, a number

of them have since jettisoned this ap proach in favour of a creativity-based

approach.1 Interestingly, all these developments occurr ed in the context of

copyright protection of dat abases and/or compilations. Europe was not spared

from these phenomenal developments. The Eu ropean Union (EU) adopt ed

the EU Directive on databa ses protection, which introduced a two-t ier system

of databases protection.2 In term s of the Directive, database s only enjoy

                    

fulfil ment of my LLM degree in Intelle ctual Property L aw. I would like to g ive special thanks

to my superv isor Richard Shay for his g uidance and comm ents on the earlier dr afts of the paper.

Publication of th is paper would not have been possi ble without his support a nd encouragement.

All error s are mine.

1 Feist Publicatio ns, Inc v Rural Telephone Serv ice Co. 499 US 340 (1991) (hereina fter the ‘Feist

case’); C CH Canadian Ltd v Law Socie ty of Upper Canada [2004] 1 SCR 339 [16] (herein after

‘the CCH case’); IceTV P ty v Nine Netwo rk Pty Ltd [2009] HCA 14 [33], [52], [98]–[99],

[133]–[13 4], [157], [187]– [188] (here inaft er ‘the Ic eTV ca se’); Telstra Corporation Lt d v Phone

Directorie s Company Pty Ltd [2010] FCA 44; and Primary He alth Care Ltd v Commissione r of

Taxation [2010] FCA 419.

2 Directive 96/9/ EC of the European Parlia ment and of the Council of 11 March 1996 on the leg al

protection of da tabases. Ryanair Ltd v PR Aviatio n BV Case C-30/14 (herein after ‘the Ryanair

case’) para 3.

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(2020) IPLJ 56

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copyright if their cr eation involved some level of creativity. Databases lack ing

the creativity element are pr otected in terms of the sui generis dat abase right,

which requires investme nt as opposed to creativity in t he creation of databases,

a markedly different st andard. These developments may be i nterpreted as a n

indication that the ‘sweat of the brow’ test is not an appropriat e standard for

protecting copyr ight in databases. Unfort unately, South Africa’s copyright law

has remained dor mant despite these developments.3 The ‘sweat of the brow’

test is still regarded a s the basis for protecting copy right in South Afr ica.4

Although the stand ard is admitt edly low, its appropriateness has not been

seriously q uestioned .5   

is congruent with ou r constitutional desig n and competition law objectives.

Although the Copyrig ht Amendment Bill seeks to a ddress the problem by

elevating the standard r equired for protecti ng copyright in dat abases and

compilations, it does so in an u nprecedented and confusing manne r.6

This art icle is arranged into several pa rts, sta rting with the i ntroduction

in Part 1. Part 2 of the work deals with the pr otection of databases in t he

EU. The EU is chosen as a comparative juris diction because of its polarised

requirements regar ding the protection of data bases. The two systems of

database protect ion are analysed with a view to determ ine whether our current

and proposed origina lity standa rds are appropriate for prote cting copyright

             

Africa. Par t 4 analyses the ‘sweat of the brow’ test as the basis for protecti ng

copyright in South Af rica. Part 5 consider s how our courts have applied the

‘sweat of the brow’ test to databases. Part 6 ana lyses the originality standard s

             

Part 7 considers the relationsh ip between the South Af rican origin ality

standard and ou r competition law objectives. Part 8 consider s the originalit y

standard in relat ion to certain con stitutional law considerat ions. Part 9 deals

3 Copyright Act 98 of 1978. The failu re to amend the Copyrig ht Act 98 of 1978 in order to cater

for databases i s rightly lamented by T Pistor ius and C Visser ‘The Copyrig ht Amendment Act

125 of 1992 and computer prog rams: a preliminar y overview’ [1992] South African Merc antile

Law Journal 359. One would have th ought that our legislatu re would amend the Copyrig ht Act

in order to cate r for databases/compila tions as a separate s ubject matter for copyr ight protection

like it did for comput er programs thr ough the Copyright A mendment Act 125 of 1992.

4 O Dean and S Karjiker Han dbook of South A frican Copy right Law [Ser vice 15] (2015) 1–10.

Section 1 of the Copy right Act 1978 defin es ‘literar y work’ as ‘tables an d compilations ,

including ta bles and compilations of data st ored or embodied in a computer o r a medium used

in conjunctio n with a computer, but shall not i nclude a computer progra m’. This was ma de clear

in cases like K alamazoo Di vision (Pt y) Ltd v Gay and Others 1978 (2) SA 184 (C) para [190]

(hereinafter ‘the Kalamazoo case’); Accesso CC v Allfor ms (Pty) Ltd and Another [1998] 677

JOC (T) (case No ii) (her einafter ‘th e Accesso case’) [688–9]; Econostat (Pty) Ltd L ambrecht and

Another [1983] 89 JOC (W) para [102].

5 H Blignaut ‘Copyright’ in O D ean and A Dyer (eds) Intr oduction to In tellectual Pro perty La w

(2018) 16 and Dean a nd Karjiker (n4) 1–22. Here, the a uthors point out that t he originalit y standard

applicable in Sout h Africa is the ‘sweat of the br ow’ test and that creati vity is not a require ment.

6 A van der Mer we et al Law of Intellectu al Property in S outh Africa 2 ed (2016) 208. Clause 2A(2)

of the first ver sion of the Copyright Ame ndment Bill provided th at tables and compilation s will

enjoy copyright p rotection if t heir selection a nd arrang ement of their cont ents constit ute the

author’s own intellect ual creation. The la test version is found at htt ps://www.parliament.gov.za/

storage/app/media/uploadedfiles/Copyright%20Amendment%20Bill%20Draft.pdf.

EVALUATING THE COPYRIGHT PROTECTION OF DATABASES IN SOUTH

AFRICA: A COMPARATIVE ANALYSIS WITH THE EUROPEAN UNION 57

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© Juta and Company (Pty) Ltd