Justice Endlaw of the Delhi High Court has dismissed a lawsuit that Tech Plus Media Pvt limited had filed against its former employees who started a new publication after allegedly copying their visitor (or, we assume, newsletter) database, reports SpicyIP. The judgement states that “…the said databases are nothing but a collection of the e-mail addresses of the visitors to the website/news portal of the plaintiff. The plaintiff cannot be said to be the author or composer or having any contribution in the same.” Read the judgment here.
The Case: Copying the database as copyright violation?
Tech Plus Media publishes ITVarNews.Net and a print publication called IT Price VAR, and it alleged that its former employees (Jyoti Janda and Rajeev Ranjan Jha) had started a website called thenewsxpress.com (appears defunct now), with similar content/services as Tech Plus Media, pricing the services at half the rate. TechPlus claims that they found that the defendants had copied confidential information and databases on a pen drive and emailed it to their personal e-mail IDs.
What The Court Said
– What contribution did TechPlus make to create the database? “The plaintiff, save for repeatedly referring to databases has not specified as to what those databases pertain to and what is the contribution of the plaintiff thereto. From what has been argued, the said databases are nothing but a collection of the e-mail addresses of the visitors to the website/news portal of the plaintiff. The plaintiff cannot be said to be the author or composer or having any contribution in the same.”
The judge cited the Supreme Court case of Eastern Book Company Vs. D.B. Modak (2008), saying that “to claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious but at the same time it is not a product of merely labour and capital. It was however clarified that the exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. ”
– How can copyright be claimed over a collection of names and addresses of visitors to a news portal? “I repeatedly enquired from the senior counsel for the plaintiff as to how, in a collection of the names and addresses of the visitors to the news portal of the plaintiff or their comments, the plaintiff can claim copyright within the meaning of Section 14 of the Act and how the same can be called literary, dramatic or musical work or even a computer programme. It is not the plea of the plaintiff that it has got written from anyone a computer programme for maintaining such contents or for shifting the same into various categories etc.”
– A company cannot be the author of any work: (since, legally, it is an artificial person), and to claim copyright, it had to identify work and its author of the work and show an agreement under which the author has made the company the owner of the copyright in the work.
The judgment cites the American Express Bank Ltd. Vs. Priya Puri MANU/DE/2106/2006 case, which stated, among other things, that “the details of customers are not trade secrets nor are they property”.
In the past, there were cases of individuals selling databases from job portals, and in those cases, they’ve been booked under Section 66B of the IT Act (hacking) and Section 66 of the Copyright Act (disposal of infringing copies), and Section 420 of the Indian Penal Code (cheating). None of these appear to be applicable here.
Effectively, all databases that have been created by job portals, or even for publishers like us, have been created automatically by users entering their details – email addresses or otherwise – but there has effectively been no creativity in putting together the compilation, in terms of exercising skill or judgment. Does that mean that any database generated online is open for copying? Perhaps not if, as said in the judgment, if someone has written “a computer programme for maintaining such contents or for shifting the same into various categories etc.”
We’ve heard of instances of cases where what TechPlus has alleged as happened – databases have been copied by employees who started new publications. There are instances where emailing companies end up offering customer databases to others. Read: The Ugly side of Email Marketing in India.
To the lawyers reading this: do tell us how businesses can ensure that their compilation is protected under law.