Legal Protection Of Databases: Jamaican Litigants Test The Bounds Of The Copyright Act

Author:Ms Dianne Daley and Nicole Foga
Profession:Foga Daley

In early 2011 Jamaica's Supreme Court issued a critical ruling on the Copyright Act which directly impacts on the telecommunications industry, as well as developers and users of databases in Jamaica.

Database protection has come a long way internationally since the 1995 World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The agreement's framers sought to make it explicit that only databases that, by reason of the selection and arrangement of their contents, constitute intellectual creations can qualify for copyright protection; such protection is independent of any protection that may exist over the database's contents.

Since then, several jurisdictions – in particular the United Kingdom and other members of the European Union – have effectively created a new database right through the implementation of the EU Database Directive (1996). This protects databases which would be disqualified from copyright protection by virtue of the TRIPs standard.

Although Jamaica's prevailing Copyright Act 1993 – which repealed the century-old Imperial Copyright Act 1911 insofar as it applied in Jamaica – was modelled on the copyright provisions of the UK Copyright Designs and Patents Act 1988, it has not kept pace with the numerous revisions that the UK act has undergone and does not recognise a sui generis database right. However, its only substantive amendment in 1999 to implement the TRIPs obligations recently took centre stage in a legal battle that sought to determine whether copyright extends to factual databases.

The claims

In May 2005 former monopoly telecommunications provider Cable and Wireless Jamaica Ltd (C&WJ), which held sole access to its directory services and products database, sought a declaration from the Supreme Court that it was the owner of the copyright and related rights in its customer and directory database/listings. The move was precipitated by the introduction of competition in Jamaica's telecommunications market and steps taken by the regulator, the Office of Utilities Regulation, to liberalise access to related directory services and products which included C&WJ's directory database. C&WJ claimed that such access would infringe its copyright and related rights in the database and information.

One of two new entrants in the mobile telecommunications market, Mossel (Jamaica) Limited (trading as Digicel), challenged C&WJ's claim and asked the court to dismiss it for uncertainty of subject matter and uncertainty of the rights sought by the claimant. It also sought a number of alternative orders – namely, that the court should find that the Copyright Act did not accord protection by way of copyright or related rights to facts or data comprised in the claimant's directory database/listings, and/or that the claimant's customer and directory database/listings did not qualify as original intellectual creations and as such were not protected by the Copyright Act. Finally, in the event that the court found that any copyright existed in the customer and directory database/listings, Digicel sought a declaration that such protection did not extend to the...

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