September 2020

 Big data is becoming big business.  We already generate at least 2.5 quintillion bytes of data per day so data analytics is emerging as a major opportunity to inform strategy and decisions in every industry – for example, to predict future epidemic patterns, find the most lucrative investments, or help businesses manage their time and resources more effectively.

So how are information and databases protected?  Firstly, one must appreciate that there are various features to a database.  The structure and arrangement of the information in the database is one feature while the software used to clean, store, retrieve, process or analyse the information, are another feature.  Lastly, there is the information itself which can be original or compiled from other sources. Copyright may subsist in the database structure, associated computer programs and the individual items of information in the database (if original), which entitles the copyright owner to prevent others from copying or adapting these.

Information can also be protected under the common law of unlawful competition. This law prevents ‘springboarding”, which is when one starts not at the beginning in developing your own database of information, but using as the starting point, the fruits of someone else’s labour. In deciding whether an action constitutes unlawful competition, our Courts have a wide discretion and will consider factors such as the honesty and fairness of the conduct involved and the motive of the actor.

Although data itself cannot be owned in the same way that a tangible asset can be, our law does afford protection to information, which means that you can control access to and use of your information and prevent unlawful copying.

Written by Dina Biagio, patent attorney and partner of Spoor & Fisher