Que Direitos Legais (PI) estao nas Bases de Dados

When talking about data(bases) we first need to be distinguish between the structure and the content of a database (when we use the term ‘data’ we shall mean the content of the database itself). As explained in detail in the FAQ prepared by Science Commons [11]:

“Databases usually are comprised of at least four elements: (1) a set of field names identifying the data; (2) a structure (or model), which includes the organization of fields and relations among them; (3) data sheets; and (4) data. All of the Creative Commons licenses can be applied to these elements to the extent that copyright applies to them (and the Dutch and Belgium licenses can also be applied to the data, for reasons discussed in greater detail below. Copyright applies to minimally creative works expressed in a fixed form. In most databases, items (2) and (3) – the structure and the data sheet – will reflect sufficient creativity for copyright to apply. A Creative Commons license applied to these elements will permit copying of these elements under the conditions of the license selected. Field names, such as “Address” for the name of the field for street address information, are less likely to be protected by copyright because they often do not reflect creativity.”

Thus, the structural elements of a database will generally be covered by copyright. However, here we are particularly interested in the data. When we talk of “data” we need to be a bit careful because the word isn’t particularly precise: “data” can mean a few or even a single items (for example a single bibliographic record, a lat/long etc) or “data” can mean a large collection (e.g. all the material in the database). To avoid confusion we shall reserve the term “contents” to mean the individual items, and data to denote the collection.

Unlike for material such as text, music or film the legal situation for data varies widely across countries but most jurisdictions do grant some rights in the data (as a collection).

This distinction between the “contents” of a database and the collection is especially crucial for factual databases since no jurisdiction grants a monopoly right in the individual facts (the “contents”) even though it may grant right(s) in them as a collection. To illustrate, consider the simple example of a database which lists the melting point of various substances. While the database as a whole might be protected by law so that one is not allow to access, reuse or redistribute it without permission this would never prevent you from stating the fact that substance Y melts at temperature Z.

Forms of protection fall broadly into two cases:

  • Copyright for compilations
  • A sui generis right for collections of data

As we have already emphasized there are no general rules and the situation varies by jurisdiction. Thus, below we proceed country by country detailing which (if any) of these approaches is used in a particular jurisdiction.

Finally, we should point out that absent any legal protection many providers of (closed) databases are able to use simple contract combined with legal provisions prohibiting violation of access-control mechanisms to achieve similar results to a formal IP right. For example, if X is provider of a citation database, it can achieve any set of terms of conditions it wants simply by:

(a) Requiring users to login with a password (b) Only providing a user with an account and password on the condition that the user agrees to the terms and conditions

You can read more about the jurisdiction by jurisdiction situation in the Guide to Open Data Licensing.

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Fonte: What Legal (IP) Rights Are There in Data(bases)

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