We often hear people talking about ‘rights in data’ in the context of drafting agreements, but what rights exist in data?
From a legal perspective, the key rights affecting data are intellectual property rights, subdivided into copyright and confidentiality, and privacy (a.k.a. ‘data protection’ in the EU).
Copyright in data
Many people are surprised on learning that copyright protection is not automatically afforded to data. In Australia, except where a datum element is itself a copyright work, data may (but not automatically will) be protected under rules on ‘compilations’ as a subspecies of literary work under the Copyright Act 1968 (Cth). Here, a compilation of data is protected as a copyright work only if both the requisite ‘originality’ and ‘authorship’ thresholds are met. For example, automatically collated databases may not acquire protection (see Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149).
Confidentiality and data
Confidentiality can also provide rights over data, but only so long as use and dissemination has been controlled and the necessary element of ‘in confidence’ maintained. For information products supposed to be made publicly available, this is seldom possible unless there is a clear instance of what might be term ‘black box’ disclosure, which is typically reinforced by contractual obligations (see KS Paul (Printing Machinery) Ltd v Southern Instruments Ltd [1964] RPC 118).
Privacy and data
Even where copyright and/or confidentiality applies, third parties might have additional legally protected interests in respect of that data. For example, where the data comprises ‘personal information’ within the Privacy Act 1988 (Cth), subject to exemptions, exceptions and exclusions, the person holding that information must comply with privacy protection principles.
Associated legal rights and risks
It is worth noting that in addition to the above, other rights (and corresponding restraints) may also apply in relation to data. For example, if the contents of the data comprise or contain defamatory material or false representations, releasing that data could generate corresponding claims. Given this, contractual warranties and indemnities in relation to the use and disclosure of data can often be as important as notional ‘ownership’.
ARETE Group is a commercial law firm with specialist expertise in intellectual property and related rights. We are well placed to assist with any legal issues and associated services relating to rights in data.
