Abstract: in order to be considered a compilation, such works should typically possess a number of characteristics, such as the selection or arrangement of the data, and the originality in the presentation of said data. In other words, compilations generally require a modicum of originality and ingenuity present in order to receive some form of protection as an original work.
(By Luo Yanjie) Generally, the copyright of a database protects the arrangement of the database rather than to the contents. The case in today’s post demonstrates this point, and at the same time, provides a bit of good for thought. The following is the introduction to the case.
Introduction to the case:
The Hainan-based Jingtian Company began to develop its Chinese Laws and Regulations Database (the “database”) in 1996, and officially published the database in 1999 after having been officially registered in the State Copyright Office in March 1998. The Shanghai-based Xuxi Business Consultancy Enterprise subsequently copied all of the laws and regulations of the database on its website named “专家论案 Zhuanjia Lun’an,” without authorization. The Jingtian Company then filed a lawsuit, alleging that Xuxi Enterprise’s acts infringed the copyrights of its protected database. In its claims, the Jingtian Company demanded Xuxi Enterprise to immediately stop the infringement, and to compensate the former RMB 200,000 for its economic losses arising out of the alleged infringement.
After hearing the case, the first instance court (Shanghai No.1 Intermediate People’s Court) found in the database that the regulations of the officials from the State Council were classified so that they were dependent upon the establishing organization, including the ministries, commissions and institutions of the State Council. The court ruled that the database’s classification of the laws and regulations therein formed 35 categories, primarily dependent upon the establishing organization, and referred to the appropriate categories for the laws and regulations enacted by similar commissions and institutions. The court held that, such previous arrangements and classification codes required a modicum of originality according to the Copyright Law, and, at the same time, the “database” employed abbreviations for some comparatively longer titles in other laws and regulations. Such arrangements and classification codes used some specific approaches, such as a simple search of the first characters of the titles of the laws and regulations, or those otherwise thereby determined by some arrangement’s needs (such as a convenient method of searching) or those of the Jingtian Company. Therefore, the court upheld that the brief titles used in the arrangement of the information embodied some degree of originality and constituted a protectable work. Upon the aforementioned analysis, the court decided that the Xuxi Enterprises infringed Jingtian’s database and shall take responsibility for the infringement. Dissatisfied with the decision made by the first instance court, Xuxi Enterprise appealed. The second instance court, however, affirmed the original judgment handled down by the first instance court.
In this case, the court held that the involved database constituted a “compilation work”, and subsequently decided that the defendant, without authorization, copied the database, constituting copyright infringement. Now we will combine the case with the court’s views in order to do the following analysis.
1. The scope of protection of “compilation works”
Current Chinese Copyright Law stipulates that: “the right of compilation, i.e., the right to render one’s work or extracts of one’s work into a new work through selection or arrangement and assembly.” In addition, the Copyright Law also holds that “compilations of certain works, extracts from works, or data or other materials that do not constitute a work are works of compilation, provided that they show originality in terms of the selection or arrangement of their contents.” upon the afore-mentioned provisions, what is to be considered a “compilation” shall be determined by the originality utilized and presented in the selection or arrangement of the information located within the compilation or database. Therefore, the only compilation works which will receive protection under the Copyright Law are those that original and novel selection or arrangement of the database needed in order to afford such protection, rather than the contents of the said database.
2. Why the court ruled that the plaintiff’s compilation work was original?
In this case, the court held the involved database was original, for the following two reasons; first, the database was composed of 35 categories, primarily dependent upon the establishing organization, and referred to the appropriate categories for the laws and regulations enacted by similar commissions and institutions. The court held that such arrangement and classification codes embodied a certain degree of originality. The other is that the plaintiff created and employed a system that necessarily and effectively abbreviated the titles of some comparatively long titles of some laws and regulations. About this analysis handled down by the court, I have some doubts:
Firstly, classifying the laws and regulations dependent upon a similar organization’s establishment of commissions and institutions is an “obvious” arrangement approach to organizing the information – this doesn’t require a high degree of intelligent work. Although the Copyright Law requires a lower degree of “originality” for some works, as a law protecting intelligent works, the objects of such protection should contain a minimal level of original thought. In my opinion, classifying the laws and regulations dependent upon a similar organization’s establishment of commissions and institutions ought to be excluded from what may be considered “intelligent works”.
Secondly, as for the acts that “the plaintiff carried out necessarily and effectively abbreviating some comparatively long titles of certain laws and regulations”, whether abbreviations of such laws as being “intelligent works” should not even be considered – because in this case, what is deemed an “intelligent work” is that which simply abbreviated and shortened longer titles for some laws and regulations.. What is the crucial determining factor is whether the selection or arrangement of the information is novel and original, not the information within the compilation works itself. Therefore, the court’s decision that the database constituted a compilation work sufficient to be protected under the Copyright Law seems entirely inappropriate.
I think there is a certain controversy of whether the involved database shall be protected by the Copyright Law. But in any case, the defendant’s unauthorized reproduction of Jingtian’s database is likely a good example of unfair competition. If the plaintiff can file a lawsuit alleging violation of unfair competition laws, the plaintiff will bear a comparatively low risk of losing the lawsuit, and cause less controversy as well.