This last Session of the Conference was chaired by Professor Geoff M. Wilson of the University of New South Wales, and commenced with a keynote address entitled International and Australian Copyright Considerations in Data and Data Compilations by S. Ricketson. This was followed by papers on Non-nutrient Databases for Foods by K. Louekari (presented by V. Piironen), Food Composition Databases in the Food Industry by O. de Rham, The Databases of the Australian National Food Authority, by J. Lewis and S. Brooke-Taylor, Data Considerations for Nutritional Labeling in the United States, by J. Tanner, and Functional Foods for Specific Health Use - the Needs for Compositional Data, by K. Shinohara. These papers are all published in this Section.
Faculty of Law, Monash University, Wellington Road, Clayton, Vic 3168, Australia
Copyright protection of data and data compilations both in Australia and internationally is both qualified and incomplete. The paper reviews the basic principles of copyright, and then considers their specific application to data, tables and compilations. The principal domestic law examined is the Copyright Act 1968 (Cth) and the case law arising under this Act and in jurisdictions with similar common law backgrounds, such as the USA and UK. The principal international instrument considered is the Berne Convention for the Protection of Literary and Artistic Works which is currently in the process of revision. The paper examines the scope of protection for data and tables and compilations of data, with particular reference to the requirements for protection, the exclusive rights obtained and the question of entitlements. Brief consideration is also given to non-copyright protection which may be available.
Unlike other statutory intellectual property rights, such as patents, designs and trade marks, Australian copyright law, which is contained in the Copyright Act 1968, is not dependent upon a system of registration or compliance with any other kind of formality, such as the giving of notice or the deposit of copies. Protection arises once a work is “made”, that is, once it is reduced to some kind of “material form”. This form may be visible or invisible (1). Apart from this, all that needs to be established is that the author of the work is qualified for protection in Australia by reason of her nationality or residence status (2) as extended by the international conventions to which Australia is party (3), or by reason of first publication in Australia (4) or in another country which is party to the same international conventions as Australia (5). Protection is available to a wider range of productions under the general classifications of “works” and “subject matter other than works”. The first covers “literary, dramatic, musical and artistic works”, which in turn embrace a disparate collection of subcategories such as books, plays, paintings, tables and compilations, computer programs, photographs, buildings, choreographic works and sculptures (6). These are protected so long as they are “original” (7) (see further below). The second covers material of a more “industrial” character, namely sound recordings, films, broadcasts and published editions of works (8). Copyright protection confers quite extensive “exclusive” rights on the copyright owner. Of these, the most important are the reproduction, adaptation, public performance and broadcasting rights (2). Duration of protection is also extensive, the basic rule being that, in the case of works, it applies for the life of the author of the work plus 50 years (9). In the case of subject matter other than works, the basic term is shorter (50 years from first publication or making).
Copyright in Relation to Databases
In essence, database are simply a particular species of the broader genus of tables and compilations which have long been the subject of protection under Anglo-Australian copyright law. Thus, the definition of “literary work” in subsection 10 (1) of the Copyright Act 1968 includes
“… (a) a table, or compilation, expressed in words, figures or symbols (whether or not in a visible form); …”
The words in brackets seem to be an express legislative indication that tables and compilations expressed in electronic form are comprehended within the meaning of literary work and this is confirmed in the Explanatory Memorandum to the Copyright Amendment Bill 1984 which states that it was intended to include computerized data banks which might not be expressed in any visible form of notation (10).
However, it is not the case that all tables and compilations (however expressed) are automatically protected under the Copyright Act 1968. As with all other works, it is still necessary that the table or compilation in question be an “original” literary work in order to qualify for protection (11). Anglo-Australian copyright law has never placed a particularly high premium on the requirement of originality in comparison with other jurisdictions where some level of personal intellectual creation is often required (12). There is no requirement of novelty or inventiveness, such as are necessary in patent or design law. All that is required is that the alleged author has contributed skill, time and effort to the creation of the alleged work and that the latter is not the result of copying from elsewhere (13). This approach has a liberating effect in many instances, in so far as it frees courts from the invidious task of comparative aesthetic judgment in considering the eligibility for protection of works such as the pulp novel, the hackneyed dramatic script and the amateur painter's daub. It has also provided protection to a vast array of subject- matter that would otherwise have little claim to be “literary” or “artistic” but which nonetheless embody the results of the application of high levels of intellectual and/or physical effort on the part of their creators. Early instances of this included railway timetables (14), anthologies of poetry (15), catalogues of merchandise (16) and betting coupons (17); more recently, protection has been accorded to subject-matter as diverse as the forms of a card index accounting system (18), a table of scores and winning symbols for a poker machine (19), computer programs in source code (20) and engineering and design drawings (21). Some of the above would properly be classified as tables or com- pilations and, while the protection accorded to them as “original literary works” can be readily seen as an appropriate safeguard against third parties who would “reap where they have not sown”, such protection nonetheless can lead to difficulties.
The essence of a table or compilation is that it comprises a mass of raw data or information, on which the tabulator or compiler has then imposed a particular order or arrangement. So far as the individual items of data are concerned, if these enjoy copyright protection this is entirely separate from the protection which may subsist in the table or compilation (see further below): what is protected in the case of the table or compilation is simply the element of arrangement, selection or ordering that has gone into its construction. This is certainly an extension of the everyday meaning of “authorship” and, for this reason, the courts have not been prepared to confer protection on all tables or compilations. Even if the unfair competition rationale of copyright protection is admitted, the courts have still required that a particular level of skill in compilation, selection and arrangement be displayed (22).
Where the skill of selection and arrangement requires considerable literary knowledge and taste, as in the case of an anthology of poetry, the judgment that the resultant compilation is an original literary work is not a difficult one to make. Nonetheless, it is clear that the element of compilation must be clearly identifiable, if not substantial, for protection to be accorded under this heading. Thus, Anglo-Australian courts have often been reluctant to extend protection to “mere lists”, where the skill applied has been simply that of gathering and presenting items of information in a fairly mechanical way. For instance, in the famous High Court decision of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (23), it was held that copyright did not subsist in information posted by proprietors of a race course inside the course as to the names and numbers of the starting horses, the horses scratched, the numbers of the winners and so on. In the words of Latham CI, the reason for this was that:
“The law of copyright does not operate to give any person an exclusive right to state or describe particular facts” (24).
In other words, the element of selection and compilation involved in this case was so small that to grant protection would have been equivalent to protecting the raw data itself. There are a number of other Australian and English decisions to similar effect (25), although this is an area where there is room for judicial disagreement (26), and there are a number of decisions to be found in common law jurisdictions where only minimal quantities of selection and arrangement have been held capable of attracting copyright protection (27). In this regard, it is worth nothing that the courts have generally been reluctant to separate the mental skill and effort involved in ascertaining or calculating a particular item of information, such as a wager on the outcome of a football match, from the skill and effort which is applied to the actual presentation and ordering of that item in the final table or compilation for which protection is sought — chronological list of football fixtures (28); weekly fixed-odds betting coupon (29); score table used on poker machine (30). The effect of this is to protect the mental and physical effort involved in collecting data just as much as the effort devoted to ordering and presenting it. Thus, if a party wishes to use that information for his own purposes, he must gather it himself, rather than take advantage of the plaintiff's efforts in compiling it. In the colorful words of a nineteenth century judge speaking in relation to a roads directory, the defendant must “count the milestones” himself (31). On the other hand, it should be stressed that this protection of the data in a plaintiff's table or compilation is parasitic, in the sense that there must still be some element of tabulation or compilation which has been imposed upon that data by the plaintiff: there can be no protection just for raw unprocessed data and the effort that has gone into their collection.
In this regard, there may be now be a distinction between US and Anglo-Australian copyright law. In a recent decision, the US Supreme Court has made it clear that it will not give protection to “simple” compilations of data, where the elements of compilation lack the necessary degree of “personal intellectual creation” on the part of the compiler. On this basis, an alphabetical list of telephone subscribers was held incapable of attracting copyright protection (32).
By contrast, Australian and English courts still appear satisfied by a lower level of intellectual input by the compiler (33).
Copyright as Applied to Food Databases
How are these principles to be applied to food databases or compilations? The immediate, and simple, answer is that the above principles apply to these kinds of compilations in exactly the same way as they apply to compilations in general. Thus, it will be necessary to show that (a) effort has gone into the collection of the food data contained in the table or compilation, and (b) that some identifiable skill and effort has been applied to the organization and presentation of that data, that is, that it is not simply an undigested mass of “raw information”. Given the general character of food data compilations and tables, this necessary element of arrangement will usually be present. In this regard, and subject to one qualification noted below, it should not matter that the database is in electronic form, as required for computer use and storage, or whether it is in the form of “hard copy”, whether printed or in microfiche or microfilm. So long as the data are presented with some minimum degree of tabulation, ordering or collation, Australian copyright law should protect the particular format in which the database compiler has chosen to present the data. While the minimum of skill required may not be high, it should nonetheless be remembered that the “authorial” quality that is protected is that of tabulation or compilation and the protection thereby given to the data is to the data so tabulated or compiled, not to the data themselves.
The qualification referred to above concerns data compilations and tables stored in electronic form in, or for use in, a computer or computer network. It is a requirement of the Copyright Act 1968 that each protected work should have an “author” and, further, that this author should be a human being (34). This is by contrast with other subject matter protected under the Act (sound recordings, cinematographic films, broadcasts and published editions) where protection is given to the maker, broadcaster or publisher (as the case may be) and where these persons may be bodies corporate (35).
The requirement of human authorship for compilations may lead to difficulty in the case of those stored in electronic form. It is possible, perhaps probable, that in such cases the necessary element of tabulation or compilation will not have been supplied by a human operator but by a separate computer program that has classified and organized the data in accordance with the directions of the human operator. While the computer program itself may have a clearly identifiable human author, it may be more difficult in such a case to identify the necessary element of human authorship in the compilation which has been constructed with the use of that program. In the recent British Copyright, Designs and Patents Act 1988, this potential difficulty has been overcome by a specific provision dealing with “computer-generated” works:
“In the case of a literary, dramatic, musical or artistic work which is computer- generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”(36).
While this provision is of general application to all works created by computer, for example, computer-aided design drawings, in the case of an electronic database it would mean that the person who made the arrangements for the collection of the data, their storage in the computer and the use of any compilatory program for the organization of the data would be regarded as the author (and therefore first owner of copyright).
In the absence of such a provision, the Australian copyright law is not so certain, but I would suggest that a similar result would probably be reached by an Australian court faced with the question. Thus, it can be argued that there will still be the need for considerable human input into the construction of an electronic database, even where a computer program is used for this purpose. Decisions as to the kind of data to be stored, the method of organization to be adopted and the mode of retrieval will still need to be made by a human operator and the appropriate instructions given to the computer to achieve these results. By way of rough analogy, the use of the program can be seen as a tool or aid in this process, in much the same way as a typewriter, word processor or camera can be seen as aids in the creation of other kinds of literary and artistic works (37).
Greater difficulties, however, may arise where there are a number of persons involved in the creation of the compilation. Rarely will it ever be just one or two persons who have contributed to the making of a database: there will usually be a team of many persons who have participated in the project. While Australian copyright law readily recognizes the concept of joint authorship (38), there may simply be too many persons to make this workable, particularly when questions of ownership and duration of protection arise (39). Furthermore, many databases are continuing productions that are added to on a regular basis, for example, by updating or revising entries, incorporating new data, and providing different kinds of methods of presenting and analyzing those data. These additions to the database may come from one source, or may come from many, for example, where the database is networked and may be added to from any station on the network. In these circumstances, the copyright status of a person who makes one or two of these ongoing entries into the database is far from clear. Problems of this kind indicate that the protection of electronic databases as original literary works does not sit easily with the traditional concepts of authorship and originality that apply under the present Copyright Act. A provision of the kind contained in the British Act given above would therefore assist in assigning authorship ownership to one party alone, namely the person who makes the arrangements for the construction of the database.
Ownership Issues. The determination of authorship questions in relation to a database is of crucial significance in determining the important issue of who owns the copyright in the database. Not only is there a requirement of human authorship for the subsistence of copyright under the Australian Act, but there is a general rule that the author is also the first owner of that copyright. This situation is modified in the case of employee authors, where the ownership vests in the employer if the database has been made in the course of their employment (40). In other cases, it will be necessary for the would-be copyright owner to receive an assignment (or transfer) in writing of that copyright from the author or authors (41). This will be of vital significance where the compilation is prepared by a third party under some contractual arrangement. If the data are provided by A, and B then prepares the compilation, in the absence of an express assignment B will own the copyright in the resultant compilation. Where there are multiple authors who are not A's employees, it will be necessary to have separate assignments from each so far as their contributions to the compilation are concerned.
Protection of Data Used in Data Compilations
The above discussion has been concerned only with the question of copyright protection for the data compilation itself. What of the data that are used in the compilation? The answer to this depends on the nature and quality of the data in question. However, the following general propositions can be stated.
There can be no copyright protection for “simple” facts on their own, for example, a statistic, chemical formula, short verbal description, or the like. It is possible that data in any of these forms could form part of a food database. However, copyright law has always refused to protect facts or items of an insubstantial nature. Thus, there is a series of old English cases in which it was held that copyright did not subsist in the titles of books (42) and, in one celebrated later case, the Privy Council denied protection to the title of a song, “The Man who Broke the Bank at Monte Cristo” (43). More recently, a New Zealand court has held that there was no copyright in the words “Opportunity Knocks” as the title of a television program (44) and a British court refused protection for the word “Exxon” (45). The unspoken reason for these decisions seems to be an application of the de minimis principle, namely that such items are too insubstantial to be protected as literary works in their own right (46). An alternative view is that they are lacking in the necessary degree of originality (47), although this may be another way of saying the same thing. On the other hand, originality, in the sense of skill and research, was not lacking in the choice of the word “Exxon” in the Exxon case, and the reason given by the English Court of Appeal for denying it protection as a literary work was that, in itself, it conveyed neither “information and instruction, [n] or pleasure, in the form of literary enjoyment” (48). Accordingly, the storing of a title or name in a database will not generally raise any copyright issue, and the same would be true with respect to single items of data in relation to food and food composition.
While single items of data may not constitute original literary works in their own right, it is possible that a combination or assembly of data relating to a particular matter could attract protection as a table or compilation on the same principles discussed above. An example might be a table which analyzes the nutritional content of a particular food (49). If this were so, it would be necessary for the compiler of a database who wished to include that table within his own compilation to seek permission from its authors. From some of the examples I have seen, it is possible that this has not happened in many situations involving the compilation of food composition databases, and strictly this would involve an infringement of the copyright in any separate tables or compilations of data that were used without permission (50).
It is also possible that some individual items of data will be capable of attracting protection in their own right if they are more “substantial” in size than those referred to in the first paragraph. It is impossible to indicate what the quantum required here will be, but, on occasion, the courts have been prepared to protect works such as short poems, newspaper summaries, a series of numbers, and abridgments or abstracts of longer works, on the basis that they displayed sufficient original effort on the part of the alleged author. It is not clear how relevant this head of protection might be to the compilers of food databases, but possibilities would include written analyses and summaries of the nutritional components and value of particular foods, abstracts of longer papers or reports, items of explanatory material, and so on. Once these works have reached a certain length and go beyond the simple factual items referred to in the first paragraph, the possibility of protection will arise and the permission of the owner of that copyright will need to be sought in respect of any use made of it in a database.
The Scope of Copyright Protection in Relation to Data and Data Compilations
As noted above, the exclusive rights conferred on owners of copyright in literary works under the Copyright Act 1968 are quite extensive. It is worth saying something further about the more important of these rights.
Reproduction. This is the most basic right of the copyright owner, and essentially gives protection against copying or derivation. The latter need not be literal or “word-for-word”: it is sufficient if the copy is substantially similar or only “colorably” different from the original. It is also unnecessary for the copy to be in the same medium as the original: a printed work may be copied in any “material” form (51), and this would include storage in the hard disk of a computer, on a CD ROM, on film or microfiche, or magnetic tape. Nor is it necessary for the whole of the protected work to be taken: under subsection 14(1) of the Copyright Act 1968, it is enough if a “substantial” part is appropriated. “Substantiality” in this context is not simply a reference to quantity: Anglo-Australian courts have always stressed that the quality of what is taken is just as important in determining whether a substantial part of a work has been taken (52). Thus, courts will look at the significance or importance of the part taken in relation to the work as a whole, and it may not matter that a relatively short section is taken.
In the case of databases, the requirement of substantiality can give rise to problems. As noted above, the protected aspect of such works is the element of selection and arrangement that has gone into their construction, and does not extend to the individual items that make up the compilation. The latter may enjoy copyright protection in their own right, or not at all, as the case may be, but this is beside the point. If the allegation is that X has reproduced part of the database of Y, this claim will only be good if that act has been done in relation to a substantial part of that database. Taking individual items of data, or even a number of items, will usually not be enough: liability will only arise where a substantial part of the arrangement or compilation of data is taken. This may provide a severe limitation on the exploitation of their rights by the owners of copyright in databases, as is well illustrated by the English case of Warwick Films v Eisinger (53). The compilation here comprised edited transcripts of the trials of Oscar Wilde, but, although the defendant had taken considerable extracts from the transcripts (in which the plaintiff had no rights), these portions did not contain any of the plaintiff's editorial changes or accompanying commentary. Accordingly, as they now lacked the element of selection and arrangement which the plaintiff had supplied in his compilation, they did not constitute a substantial part of it (54). The same point was also made in Ladbroke (Football) Ltd v William Hill (Football) Ltd (55), a case involving a claim for copyright in the layout of a football coupon. On the question of whether the appellants had reproduced a substantial part thereof, Lord Pearce said:
“Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement” (56).
In crude terms, the principle here can be expressed as follows with respect to databases: it will only be the taking of the “processed” data that will attract copyright liability, in the absence of any other copyright that might subsist separately in the data itself. Nevertheless, this principle may require modification in certain circumstances. As noted above, an important part of a compilation may lie in the skill and judgement exercised by the maker of the compilation in deciding what to include. If this is the case, then the taking of several items that would not otherwise form a substantial part of the compilation may well constitute an infringement of the compilation as extended to this element of initial selection (57). In such a case, the defendant has helped himself to the efforts and skill of the plaintiff, rather than going back to the data himself and making his own selection. In this respect, however, the technical and storage capabilities of computer databases may be a disadvantage so far as the availability of protection is concerned. It is now possible for these to be comprehensive within their particular field and this, indeed, may be the essence of their commercial appeal. Thus, if a database contains every item of information relevant to a particular field, there can be no element of selection that is infringed by the taking of any number of these items. It will only be if the arrangement or collocation of these items within the database is also taken that any question of the taking of a substantial part of the overall compilation will arise. In the case of food data, unless the individual items are capable of copyright protection, there may be no infringing act on the part of a person who simply takes the data and stores it in her own database where it is used with that person's data management system.
Adaptation. A further exclusive right of a copyright owner is the right to adapt the work. “Adaptation” in this context covers a wide range of transformations of a work, such as dramatizations of nondramatic works, fictionalizations of dramatic works, arrangements of musical works and translations from one language to another (58). Following amendments made in 1984, “adaptation” now includes a different version of a computer program (whether or not in the language, code or notation in which the program was originally expressed). None of these transformations seem apt to cover what might be done with data or a database by a third party, for example, where the latter takes one or both and then puts them in his own database where they are organized and used in accordance with an entirely different data management program. Although it is possible that the items of data and/or the database may constitute original literary works in their own right (see above), the adaptation right is simply not relevant in the present context unless one or the other of these works can also be regarded as a computer program. On the other hand, the reproduction right may still be relevant here, and the initial act of storage may constitute an infringing act, irrespective of what is done after this with the data or data compilation.
Public Performance, Broadcasting, Cable Diffusion. The exclusive rights of the copyright owner also extend to authorizing the public performance or display of the work, broadcasting it, and, in limited circumstances, transmitting it to subscribers to a diffusion or wire service (59). All these acts, together with the reproduction right discussed above, are relevant to the way in which data may be retrieved and distributed. In this regard, there is a marked contrast between electronic and “traditional” or hard copy databases, where the common means of retrieval is for the user to turn the pages or shuffle the cards — acts that clearly do not involve an infringement of the copyright owner's rights. With an electronic database or data stored in electronic form, however, the processes of transmitting or communicating data to the user may in themselves involve infringements of copyright, while the actual retrieval of this data by the user may involve other kinds of infringing acts.
Distribution of Data to Users
There are three basic ways in which this can occur in the case of electronic databases: through the supply of external storage devices to the user, such as CD-ROMs; transmission by television signals; and transmission over wire, such as cable or telephone lines. The first of these, sometimes referred to as “off-line distribution”, clearly involves the making and distribution of “copies” of the database and of any works stored in the database. This is on the basis that the storage devices can be regarded as “reproductions in a material form” of any protected works that are stored in this fashion.
As to the second, television transmission as a means of disseminating information in computer databases is apparently not common, although “teletext” or “videotext” systems using television signals have clear potential for expansion. From a copyright point of view, however, communication of data in this way will clearly be an infringement of the exclusive broadcasting rights in any protected works comprised in the transmission (60).
To date, the third method of transmission by wire or cable remains the most common means of “on-line” distribution of data stored in computer systems. In so far as this involves the dissemination of protected works, the provisions of the Copyright Act are reasonably clear. One of the exclusive rights of copyright owners of original works is the right to transmit those works to “subscribers to a diffusion service” (61). This is a distinct activity to that of broadcasting, which means transmission by means of wireless telegraphy (62). By contrast, transmission to subscribers to a diffusion service entails the distribution of “broadcast or other matter (whether provided by the person operating the service or other persons) over wires, or over other paths provided by a material substance, to the premises of subscribers to the service” (63). The latter definition appears apt to cover the circumstances under which the information from many computer databases is distributed to users. The latter may well be “subscribers to a service” within the terms of the legislation, namely through a service agreement with the owner of the database, and will be receiving the data via visual display units or printers in their own premises. This would probably not extend to networks within particular institutions or networks provided on some kind of co-operative basis.
Retrieval of Data by Users
Irrespective of whether data are transmitted to users by off-line or on-line communication, the question still arises as to whether the retrieval and use of those data by the user constitute an infringing act in relation to any copyright work embodied in that material. Basically, there are two ways in which retrieval may occur: through the display of data on a visual display unit or through the production of printed or other “hard” copies.
Visual Display. There are two ways in which this activity may be analyzed under the Copyright Act 1968. The first is that the visual display is a public performance of the work displayed (64). The second is that this is a reproduction in a material form of that work (65). The two are by no means mutually exclusive.
Public Performance. This does not require performance by a human actor or performer. Under subsection 27(1), a reference to “performance” includes “any mode of visual or aural presentation, whether the presentation is by the operation of wireless telegraphy apparatus, by the exhibition of a cinematographic film, by the use of a record or by any other means; …” It is further provided that:
“Where visual images or sounds are displayed or emitted by any receiving apparatus to which they are conveyed by the transmission of electromagnetic signals (whether over paths provided by a material substance or not), the operation of any apparatus by which the signals are transmitted, directly or indirectly to the receiving apparatus shall be deemed not to constitute performance … but, in so far as the display or emission of images or sounds constitutes a performance, … the performance … shall be deemed to be effected by the operation of the receiving apparatus” (66).
It therefore seems reasonable to regard the display of protected works on the visual display unit of a computer terminal as the “performance” of those works by means of a receiving apparatus (where the work is communicated by cable or some other material path) or “by any other means” (where the work is retrieved offline).
The next question is whether the act of visual display occurs “in public”. No definition of this term is to be found in the Act (save for section 28 which excludes performances given exclusively in the course of educational instruction and section 46 which provides an exclusion for the visual display of broadcast data where this is done in premises where persons reside or sleep), and it therefore remains a matter for judicial interpretation. Essentially, the courts have adopted a restrictive approach, confining non-public performances to those in the domestic or quasi-domestic sphere (for an extreme interpretation of “quasi-domestic” in the case of nurses and doctors living within the confines of Guy's Hospital, see Duck v Bates (67). Thus, the fact that the “audience” is limited in some way, for example, to those who pay an admission fee or who are members of a club or association, will normally be irrelevant (68). The prime consideration in determining whether a particular performance is “in public” is the character of the audience: whether this is the type of audience which can be described as the copyright owner's audience in the sense that the owner would look to deriving financial benefit from authorizing a performance of his work before it. In the present context, it is relevant to note a significant New South Wales decision in which this principle has been applied to the case of free in-house movies that were offered as part of the services to guests at a motel (69). There was clearly a market there for the display of such films and the persons who viewed them were members of the copyright owners' public, even if they viewed the films in the privacy of their individual rooms. Another decision of the Federal Court of Australia has held that there was a public performance where video films were played to a small group in a bank as part of an in-house training program (70). By the same token, where users of a computer database retrieve information on a visual display unit, they are displaying or performing in public any protected work which appears on the screen and it should not matter whether the unit is situated in a publicly accessible place such as a library or in the office of an individual user.
Reproduction in a Material Form. The other alternative is that visual display is a reproduction in material form of the work displayed. However, it is more difficult to reach a firm conclusion here. There can be no doubt that, unlike storage of a work in a computer hard disk or CD-ROM, in this instance the work is perfectly visible and comprehensible to the human eye. Furthermore, it is often in a page format that is similar to that of any printed version of the work. On the other hand, the form of fixation is transitory and only lasts so long as the human user desires to have the work displayed on the screen. In this regard, reference can be made to the use of the word “storage” in the definition of “material form” in subsection 10(1) of the Copyright Act 1968. “Storage” implies some degree of permanency and it seems a misuse of language to describe the transitory display of a work on a visual display unit as a form of storage. On the other hand, the definition of “material form” is inclusive only and it is therefore arguable that “material form” can embrace other less permanent forms of fixation. Thus, in an early case under the Copyright Act 1911, it was held that a tableau vivant representing a cartoon from Punch Magazine was a reproduction in a material form of the cartoon (71).
There is no reason under the present Act why visual display should not simultaneously constitute both the act of performance in public and the act of reproduction in a material form. As a matter of principle, however, it is obviously undesirable that the one act should give rise to two distinct grounds of liability and it would therefore be advantageous for the Act to indicate which one should apply to the exclusion of the other. In this regard, it is of interest to note the recent recommendation of the Commonwealth Copyright Law Reform Committee that the Act should be amended to make it clear that screen displays do not constitute either a reproduction in material form or a public performance of works stored in computer memory (72)
Other Forms of Storage. This expression is used simply by way of contrast to visual display and is intended to cover all other forms in which data may be retrieved, including hard-copy printout, facsimile reproduction or by way of transfer into other devices for internal or external storage. The relevant right here is the reproduction right, and as a general proposition it would appear that any acts of this kind will involve an infringement of this right. However, a question remaining to be resolved in each instance will be whether a substantial part of the data or database has been reproduced, and the matters that are relevant to this have already been discussed above.
Some Practical Issues. In the light of the above, it will be clear that many uses of the data contained in a protected database will be controlled by the owner of the copyright in that database and that permission will therefore need to be sought for the use or uses that is sought to be made of this data. As there is no registration system for copyright in Australia, it may not always be easy to identify the copyright owner for the purposes of obtaining permission. Nonetheless, this does not excuse the intending user from seeking out the copyright owner, and it will be dangerous to proceed in the absence of permission. As the use of data in protected databases is not covered by any compulsory license scheme under the Copyright Act 1968, there is no clearly established benchmark for the level of fees or royalties that will be payable for the intended use. This will be a matter for negotiation between the copyright owner and user, although in practice there may be clearly accepted levels of royalty that exist in particular fields. In each instance, it will be necessary to comply with any other conditions that are laid down by the copyright owner, for example, limitations on the amount that may be used, the need for acknowledgment of source, and the like.
At the same time, it should be noted that some database copyright owners do not object to appropriate use being made of their data where this is clearly in the public interest. This would seem to be the case under the Australian Food Standards Code, Section A, Clause 13, where the reproduction or adaptation of Australian food composition data from the government database is expressly permitted for certain purposes, such as for display on food labels for advertising and information purposes. From the copyright perspective, this kind of permitted use should give rise to no problems, so long as any specified limitations or conditions on the use are observed (In the event that they are not, this will be a breach of the license given and therefore an infringement of copyright).
• International Aspects of Copyright Protection
Several matters need to be noted here: first, the protection of Australian data and databases abroad; secondly, the protection of foreign data and databases in Australia; and thirdly, some brief comparative treatment of developments that are occurring in other countries with respect to increased protection of these kinds of subject matter.
Protection Abroad and in Australia
Australia is a party to the Berne Convention for the Protection of Literary and Artistic Works which now binds over 105 countries. These include almost all of the important developed countries and a great majority of developing and former socialist states (the separate states of the Commonwealth of Independent Nations are significant exceptions, but are probably still bound to a lesser extent through their membership of another international convention, the Universal Copyright Convention).
The effect of the Berne Convention is to accord protection to Australian works in all other countries which are members of the Convention, and to extend similar protection here to works that originate from those countries. So far as Australia is concerned, this is done through regulations made under the Copyright Act 1968, the effect of which is to extend protection in Australia to works with authors who are nationals of these other countries or to works which have been first published in one of those countries (73). In broad terms, this means that a British or French database will be entitled to protection in Australia, in the same way as an Australian database, and this will also be the case for individual items of data that are capable of being treated as separate copyright works (see above). A similar position will also apply so far as the protection of Australian data and databases in these other countries is concerned. This occurs without the need for any formalities, such as registration, although in the USA registration will provide the foreign copyright owner with certain procedural advantages that may make it easier for her to enforce her rights in that country. Some differences in treatment may arise from country to country, depending on the level of originality or intellectual creation that is required for protection, but, in any event, it is a fundamental requirement of the Convention that foreign and local works are to be treated in exactly the same way (the principle of “national treatment”: Berne Convention, article 5(1)). In other words, if German law, for example, requires a higher level of personal intellectual creation for an item of data or a database, the same standard will apply to the foreign claimant for protection as to the local claimant.
International Comparisons with Respect to Databases
It is only possible here to make brief reference to the substantive level of protection for databases both internationally and in other jurisdictions. As a general matter, compilations are protected elsewhere on a similar basis to that under Australian law, but with some variation as to the levels of originality or intellectual creation required. Relatively little attention, however, has been paid to the particular problems that may be raised by electronic databases. Thus, article 2(5) of the Berne Convention provides that:
“Collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”
This provision refers only to collections of copyright works, but as its emphasis is upon the elements of selection and arrangement this does not seem to restrict member countries extending protection to collections of non-copyright material that display the same qualities (74). This is, for example, the position in the Federal Republic of Germany, where “collections of works or of other contributions” are protected as works where, “by virtue of the selection or arrangement thereof, [they] constitute personal intellectual creations” (75). Likewise, the US Copyright Act 1976 protects “compilations” of data as works, defining “compilation” as:
“… a work formed by the collection and assembling of pre-existing materials or of data that are selected, co-ordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” (76)
Similar provisions apply in Japan (77), where an amendment made in 1986 now makes specific reference to “data base works”. “Data base” is defined as “an aggregate of information such as articles, numerals or diagrams, which is systematically constructed so that such information can be searched for with the aid of a computer.” (78) It is then provided that these are protected as independent works, “where, by reason of the selection or systematic construction of information contained therein, [they] constitute intellectual creations” (79).
In general, it seems that many national copyright laws provide protection for databases, irrespective of whether they contain protected works or not (80). However, it also appears that, as in Australia, these laws will generally require the database to possess some minimum level of originality or intellectual creation by reason of its selection and arrangement. These levels may differ between countries, and the result is to produce uncertainty for database producers who wish to obtain copyright protection on as broad a basis as possible. (For example, in the USA the number of protected databases may now be considerably less following the decision of the Supreme Court in Feist Publications Inc v Rural Telephone Service Co Inc (81). It may also be the case that a number of databases that would otherwise qualify for protection in that country will be in the public domain because they are “works of the United States Government” (82). This uncertainty has led to international proposals that databases lacking the necessary quantum of originality should nevertheless be entitled to special protection so as to safeguard the considerable investment that is represented therein. Such protection would be analogous to that granted to subject-matter such as sound recordings and broadcasters under neighboring rights legislation in many countries or under Part IV of the Australian Act, but would not be to the prejudice of any fuller copyright protection that might be available for truly original databases. A precedent for this form of protection already exists in some countries in respect of compilations lacking the necessary degree of originality. Thus, in the Nordic countries, there is a common provision that provides as follows:
“Catalogs, tables and similar productions in which a great number of items of information have been compiled, as well as programs, may not be reproduced without the consent of the producer until 10 years have elapsed from the year in which the production was published” (83).
A proposal for a similar kind of protection for electronic databases was discussed at a WIPO/UNESCO Committee of Governmental Experts on the Printed Word in Geneva in late 1987. It was submitted that this special protection should comprise the following: the exclusive right of database producers to authorize the reproduction, in any manner or form, of their databases; similar limitations to this right as are applicable in respect of literary and artistic works included the database; and a minimum term of protection of 10 years from the end of the year in which the database is made available to the public (84). These proposals were embodied in a series of draft principles. A final principle (85) provided that:
“The specific protection granted to data base producers according to Principles PW17 to PW19 should leave intact and should in no way affect the protection of copyright in literary and artistic works included in electronic data bases.”
This received varying degrees of support from the 31 nations represented on the Committee. Some delegations expressed their reservations concerning sui generis protection of databases, on the ground that this would fall outside the scope of the international copyright conventions and the principle of national treatment (as occurs in the case of the Nordic countries). It was also argued that such protection would serve to dilute copyright protection where it might otherwise be applicable and, on the other hand, might result in the protection of “fairly meager collections which were not worthy of protection” (86). Reservations were also expressed concerning the shortness of the proposed period of protection and the difficulty that any requirement of publication might pose in particular countries. Nonetheless, although there was no clear consensus among delegates as to the details of protection, it does seem that there was a general recognition that some protection was appropriate to safeguard the efforts and investment involved in the compilation of electronic databases (87). In a Green Paper on Copyright published in 1989, the Commission of the European Communities proposed that there should be a separate sui generis form of protection for those databases ineligible for copyright protection (88). A subsequent Draft Directive (1991) prepared by the Commission and still under discussion creates a new right of “unfair extraction” in both non-original databases and those protected by copyright.
At the broader international level, the World Intellectual Property Organization (1992) has proposed modest amendments to the Berne Convention, but these would not represent any advance on the current Australian law and do not go as far as the EC proposals. Finally, so far as Australia is concerned, the Copyright Law Review Committee has taken the view that, with some minor exceptions, there is no need for changes in our domestic law in relation to databases (89). It is clear, therefore, that it will be some time before there is international agreement on whether special treatment for databases is warranted.
• Other Forms of Protection
While the bulk of this paper has been concerned with the copyright status of food data and databases, brief reference should be made, for the sake of completeness, to two other forms of protection that may be highly relevant. These are: (a) the equitable action of breach of confidence, and (b) contractual restrictions.
Breach of Confidence
This is a purely judge-made form of protection that safeguards information that has been prepared and utilized in circumstances of confidence (90). If this information is communicated in confidence to another party and the latter misuses or discloses the information to another without permission, the law will often grant a remedy (either an injuction restraining the activity or some form of monetary award) against the offending party. This is a completely informal form of protection that will depend very much upon the plaintiff establishing the confidentiality or secrecy of his information and some kind of improper misuse of that information by the person to whom it has been confided. It can even extend to third parties who come into possession of the information. The action of breach of confidence is of great importance in the commercial and industrial area where it is used to protect trade secrets, confidential data and know-how. It therefore has obvious implications so far as the compilers of databases are concerned, particularly where these involve information that is out of the public domain.
(1) Copyright Act 1968, Section 10(1)
(2) Copyright Act 1968, Section 31 (1)
(3) Copyright (International Protection) Regulations 1969
(4) Copyright Act, Section 31(2)
(5) Copyright (International Protection) Regulations 1969
(6) Copyright Act 1968, Part III
(7) Copyright Act, Section 31 (1)(2)
(8) Copyright Act, Part IV
(9) Copyright Act, Section 34(2)
(10) Lahore, J.C. (1977) Intellectual Property Law in Australia: Copyright, 1st Ed., Butterworths, Sydney, pp. 280–282
(11) Copyright Act 1968, Subsections 32(1) for unpublished works and (2) for other works
(12) West German Copyright Act of 1965 (Act Dealing with Copyright and Related Rights of 9 September 1965), Article 2(2); Italian Law for the Protection of Copyright and Other Rights Connected with the Exercise Thereof (No 633 of 22 April 1941, as amended), Article 1
(13) Water v Lane  AC 539, MacMillan & Co Ltd v K & J Cooper (1925) 93 LJPC 113; Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49; Ladbroke (Football) Ltd v William Hill (Football) Ltd  1 All ER 465
(14) H Blacklock & Co Ltd v C Arthur Pearson Ltd  ILRC 2 Ch 376
(15) MacMillan v Suresh Chunder Deb (1890) 17 ILRC 951
(16) Purefoy Engineering Co Ltd v Sykes Boxall & Co Ltd (1955) 72 RPC 89
(17) Ladbroke v William Hill (Ref 13)
(18) Kalamazoo (Australia) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213
(19) Ainsworth Nominees Pty Ltd and Ainsworth Holdings Pty Ltd v Anclar Pty Ltd (1989) 12 IPR 551
(20) Computer Edge Pty Ltd v Apple Computer Inc (1986) 60 ALJR 313
(21) S W Hart & Co Pty Ltd v Edwards Hot Systems (1985) 159 CLR 466
(22) MacMillan & Co Ltd v K & J Cooper (1924) 93 LJPC 113, 118
(23) (1937) 58 CLR 479
(24) Ibid, 498
(25) Chilton v Progress Printing and Publishing Co  2 Ch 28; Odham's Press Ltd v London and Provincial Sporting News Agency  Ch 672; Smith's Newspapers Ltd v The Labour Daily (1925) 25 SR (NSW) 593
(26) G A Cramp & Sons Ltd v Smythson Ltd  AC 329; ITP Pty Ltd v United Capital Pty Ltd (1985) 5 IPR 315
(27) Canterbury Park Race Course Ltd v Hopkins (1932) 49 WN (NSW) 27; John Fairfax & Sons v Australian Consolidated Press  SR (NSW) 413.
(28) Football League Ltd v Littlewoods Pools Ltd  1 Ch 637
(29) Ladbroke (Football) Ltd v William Hill (Football) Ltd  1 All ER 465
(30) Ainsworth Nominees Pty Ltd and Ainsworth Holdings Pty Ltd v Anclor Pty Ltd (1989) 12 IPR 551
(31) Kelly v Morris (1866) 1 LR Eq 697
(32) Feist Publications Inc v Rural Telephone Service Co Inc (1991) 22 IPR 129
(33) Waterlow Publishers Ltd v Rose (1990) 17 IPR 493; Kalamazoo (Australia) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 215
(34) Copyright Act 1968, Section 32 (author must be a “qualified person”, meaning an Australian citizen, an Australian protected person or a person resident in Australia)
(35) Copyright Act 1968, Section 84
(36) Copyright, Designs and Patents Act 1988, Section 9(3)
(37) Roland Corporation v Lorenzo and Sons Pty Ltd (1992) 22 IPR 245, 252–253, per Pincus J
(38) Copyright Act 1968, Subsection 10(1) (definition of “work of joint authorship”) and Division 9 Part III
(39) Copyright Act 1968, Section 80
(40) Copyright Act 1968, Subsection 35(6)
(41) Copyright Act 1968, Subsection 197 (1).
(42) Maxwell v Hogg (1867) 2 Ch App 307; Kelly v Hutton (1868) 3 Ch App 203; Mack v Peter (1872) LR 114 Eq 431; Schove v Schminke (1886) 33 Ch D 546; Licensed Victuallers' Newspapers Co v Bingham (1888) 38 Ch D 139
(43) Francis, Day & Hunter Ltd v Twentieth Century Fox Corporation  AC 112.
(44) Green v Broadcasting Corporation of New Zealand (1983) 2 IPR 19
(45) Exxon Corporation v Exxon Insurance Consultants International Ltd  RPC 69.
(46) Kalamazoo (Australia) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213 at 232, per Thomas J
(47) Francis Day & Hunter Ltd v 20th Century Fox Corporation Ltd  AC 112, 123, per Lord Wright for the Privy Council
(48) Ibid, 88 per Stephenson LJ quoting the observations of Davey LJ in Hollinrake v Truswell (1894) 3 Ch D 420
(49) Kalamazoo (Australia) Pty Ltd v Compact Business Systems Pty Ltd (1985) 5 IPR 213
(50) Brown, R.L. (1985) Rutgers Comp. Technol. Law J. 11, 17–49
(51) Copyright Act 1968, Subsections 10(1) and 22(1)
(52) Hawkes & Sons (London) Ltd v Paramount Film Productions Ltd  Ch 593; LB (Plastics) Ltd v Swish Products Ltd  FSR 145
(53)  Ch 508
(54) Ibid, 385
(55)  1 All ER 465
(56) Ibid, 481
(57) Jarrold v Houlston (1859) 3 K & J 708, 69 ER 1294; Harman Pictures NV v Osborne  2 All ER 324; Elanco Products Ltd v Mandops (Agrochemical Specialists) Ltd  FSR 46
(58) Copyright Act 1968, Subsection 10(1)
(59) Copyright Act, Section 31(1)
(60) Copyright Act 1968, Sections 31(1)(a)(iv) (literary, dramatic and musical works) and 31(1)(b)(iii) (artistic works)
(61) Copyright Act 1968, subparagraphs 31(1)(a)(iv) (literary, dramatic and musical works) and 31(1)(b)(iii) (artistic works); para 86(d) (cinematograph films); there is no diffusion right in the case of sound recordings).
(62) Copyright Act 1968, Subsection 10(1))
(63) Copyright Act 1968, Subsection 26(1))
(64) Copyright Act 1968, subpara 31(1)(a)(iii) (literary, dramatic and musical works), paras 85(b) (sound recordings) and 86(b) (cinematograph films); there is no performance right in respect of artistic works
(65) Copyright Act 1968, subpara 31(1)(a)(i) (literary, dramatic and musical works); subpara 31(1)(b)(i) (artistic works); para 85(a) (sound recordings); para 86(a) (cinematograph films)
(66) Copyright Act 1968, Subsection 27(4)
(67) (1884) 13 QBD 843
(68) See, for example, Jennings v Stephens  Ch 469; Ernest Turner Electrical Instruments Ltd v Performing Right Society Ltd  Ch 167; Australian Performing Right Association v Canterbury-Bankstown Leagues Club Ltd [1964–1965] NSWLR 138; Performing Right Society Ltd v Rangers Football Club Supporters Club  RPC 626.
(69) Rank Film Productions Ltd v Dodds (1983) 2 IPR 113
(70) Australasian Performing Right Association Ltd v Commonwealth Bank of Australia (1993) 25 IPR 157
(71) Bradbury Agnew & Co v Day (1916) 32 TLR 349
(72) Copyright Law Review Committee, Draft Report on Computer Software Protection, June 1993, p. 17
(73) Copyright (International Protection) Regulations 1969, Reg 4
(74) WIPO Preparatory Document for the meeting on “The Printed Word”, 7–11 December 1987, Geneva, in  Copyright 42 at 81 Ricketson, S. (1987) The Berne Convention for the Protection of Literary and Artistic Works: 1886– 1986, Centre for Commercial Law Studies, London, p. 298
(75) Copyright Law of 9 September 1965, article 4. Also Dietz, A. in M. Nimmer and P. Geller (Eds.), International Copyright Law and Practice, Matthew Bender, New York, FRG-22
(76) US Copyright Act 1976, Section 101
(77) Copyright Act 1970 (Law No 48 of 1970, article 12
(78) See now article 2(1)(xter)
(79) Ibid, article 12bis(1)
(80) See WIPO Preparatory Document, Ref. 74, 81
(81) (1991) 22 IPR 129
(82) Copyright Act 1976, Section 105
(83) Swedish Law No 729 of 30 December 1960 on Copyright in Literary and Artistic Works, Article 49; Danish Act No 158 on Copyright in Literary and Artistic Works, of 31 May 1961, Article 49; Norwegian Act relating to Property Rights in Literary, Scientific or Artistic Works, No 2 of 12 May 1961, Article 43; Finnish Law No 404 relating to Copyright in Literary and Artistic Works of 8 July 1961, Article 49
(84) (1988) Copyright 42 at 82 (Principles PW 17(2), 18 and 19))
(85) Ibid, Principle PW20
(86) Ibid, 83
(87) Ibid, 84
(88) Commission of the European Communities, (1988) Green Paper on Copyright and the Challenge of Technology—Copyright Issues requiring Immediate Action, Communication from the Commission, Brussels, p. 216
(89) Draft Report on Computer Software Protection, June 1993, pp. 16– 17
(90) Ricketson, S. (1984) The Law of Intellectual Property, Law Book Co., Sydney, Ch. 42–46
Institute of Occupational Health, Topeliuksenkatu 41 a A, SF-0250 Helsinki, Finland
Non-nutrient databases for foods contain analytical data on toxic elements, pesticides, additives, mycotoxins, allergens or natural components which have no nutritional function. Non-nutrient databases can be used to monitor the trend of potentially harmful components in food; to estimate dietary intakes, provided that another file containing food consumption data can be linked with non-nutrient concentratins in foods; to clarify possible interactions between nutrients and non-nutrients; and to assess and measure exposure and risk in population groups. Examples of non-nutrient databases are discussed.
The reason for including a certain food component in a non-nutrient database is (i) that it can cause allergic or other adverse reaction; (ii) that it is potentially toxic to the consumer in excessive amounts or in long-term exposure (e.g. heavy metals or pesticide residues); or (iii) that it may interact with nutrients (e.g. decrease of calcium absorption caused by phytates) (Table I). In practice, it seems reasonable to establish and maintain a non-nutrient database only, when the necessary research capacity for updating the database contents is available and when there is the scientific and/or regulatory interest to use the data. Some categories of non-nutrients presented in Table I are not necessary included in any existing non-nutrient database (e.g. natural toxic substances and pyrolysis products), since data on their concentrations in the relevant food items are not yet available.
Table I. Categories of non-nutrients in foods
|Category (Examples)||Nutritional or harmful effects||User needs|
|Toxic elements and contaminants (Pb, Cd, Hg, Al, PCBs, dioxins)||Accumulation in the body, chronic effects||Intake monitoring, survey of trends|
|Pesticides (organochlorine and organophosphate pesticides)||As above||As above|
|Food additives (nitrates, nitrites, BHA, BHT, colours)||Toxic effects, hypersensitivity reactions||Diet planning and the above needs|
|Allergens||Intolerance reactions, allergies||Labeling, usage restrictions, consumer information|
|Nutrient inhibitors (phytates, tannins)||Decreased bioavailability of nutrients||Analysis of interactions and effects on nutrient status|
|Naturally occurring toxicants (patulin, aflatoxin, flavonoids)||Acute and chronic toxicity||Risk and intake assessment|
|Pyrolysis products (quinoline and indole compounds)||Suspected carcinogenicity||Exposure estimation, process optimisation, consumer information|
A non-nutrient database should contain average concentrations, ranges and tolerances to enable the calculation of dietary intakes and comparison with regulations. The range of the observed non-nutrient concentration is useful when estimating maximum intakes. Data on preparation of the sample are also necessary, since different types of handling and preparation (washing, peeling, cooking, canning, frying etc.) can decrease concentration of non-nutrients, especially those attached to the surface of vegetables and fruits (toxic metals and pesticides) and those which are decomposed by heat (mycotoxins). Description of the food sampling should be included to allow evaluation of how well the results represent different products, agricultural areas and seasons. Analytical method, year of analysis, and quality control of the analysis should also be presented in non-nutrient databases to enable the assessment of reliability and comparability of data. The detection limit of the analytical method may be much higher in older studies and this affects the comparability of old and recent concentrations and estimated intakes. The code of the food item can be useful when a non-nutrient database is combined with other databases on food constituents of food consumption. The relation code links a record in the calculation database (enabling numerical analysis) to the reference database which is necessary as a documentation of data sources and evaluation of data. Often one record in the reference database can be linked with several records in the calculation database, which is convenient in terms of database maintenance (Table II).
Unlike nutrients, local conditions, especially sources of food contaminants, often cause variation in non-nutrient content of foods. This has to be taken into account in the sampling protocols for food surveillance. In many cases, the maximum non-nutrient contents and the maximum exposure are of special interest. In many cases, blood levels or other biomarkers of exposure and health consequences are monitored in contaminated areas. Since health consequences of high non-nutrient intake are most likely found in certain contaminated areas, food surveillance and dietary intake studies are often directed accordingly. Examples are areas where fish is contaminated by the pulp and paper industry (Louekari, Verta, & Mukherjee, unpublished data) and areas where crops receive the fallout from mines or refineries containing cadmium or lead.
Table II. Contents of two related records in a non-nutrient database
|The calculation database|
|Name of the food item||Liver, cattle|
|Code of the food item||0102|
|Unit||μg/kg, wet weight|
|Number of samples||60|
|The range of 95 percentile of the analytical results||350|
|The maximum permitted concentrations||Not given|
|The relation code to the reference database||0502|
|The reference database (record 0502)|
|Publication||Salmi A, Hirn J. The cadmium and selenium contents of muscle, liver and kidney from cattle and swine, Fleischwirtschaft 64:1984:464–465|
|Analytical method||AAS, graphite furnace|
|The analytical quality control||NBS ref. material 1577 analyzed|
|Description of sampling||10 slaughterhouses representing the whole country, variation caused by the age of animals was considered|
|Detection of limit of analysis||Not given, sensitivity was 0.005μg/20μl|
|Year of sampling||1981|
|Year of analysis||Not given|
The food nomenclature used in a non-nutrient database should be designed to cover and differentiate those foods which contain significant amounts of the non-nutrients of interest. Vegetables and fruits may contain pesticide residues; processed foods may contain food additives; mushrooms, liver and predator fish may contain high concentrations of toxic metals.
• Examples of Non-nutrient Databases
Non-nutrient databases are maintained for example in USA, Netherlands, Denmark and Finland (1, 2, 3, 4, 5). These databases contain data on toxic metals, selected pesticides and in some countries, also on mycotoxins, radionucleides or organochlorine compounds. Data are often generated by a governmental agency, e.g. the FDA in the United States, and the National Food Agency in Denmark as part of a food surveillance program. Studies in academic institutes can be incorporated into the database. A description of some existing non-nutrient databases and surveillance/monitoring programs has been presented elsewhere (6).
In Finland, the steering group of the recently established non-nutrient database consists of representatives from relevant authorities, research institutes and the food industry. The Finnish database includes summaries of the origin, toxicity and regulatory status of non-nutrients, in addition to concentration of non-nutrients. The first version of the database contains data on mercury, cadmium, lead, dioxins, PCBs and poly- aromatic hydrocarbons, residues of antibiotics in milk products and hormones in tissue samples of animals. Also microbial contamination by Salmonella, Listeria and Yersinia is covered in the database.
With this information, the maintainer of the database, the National Food Administration, can advise consumers, respond to the media about food safety questions and in future, produce certificates for food processors. It is planned that in the future the system would also enable estimation of dietary intakes using the collected analytical data.
The presentation of the data in a record of the Finnish non-nutrient database is similar to that in Table II, with a few exceptions. Preparation/processing status of the samples is not presented in the database, maximum permitted concentrations are in a separate file and basic data on sampling is given in the calculation database but not the reference database. It was found in the updating of the database that a general way of presentation could not be strictly followed but had to be adapted according to the availability and relevance of items of information for the non-nutrient in question.
• Experiences of the Estimation of Dietary Intake and in the Analysis of Trends
Dietary Intake of Cadmium — Are the Available Data Comparable?
It is often important to know the trend of non-nutrient concentration and/or dietary intake. However, the interpretation of the available data is difficult if changes in analytical techniques and methods of dietary intake estimation are not taken into account. For example, it has been suggested that a decreasing trend in cadmium intake in European countries could be seen (7). However, the estimates of intake used by van Assche are not comparable since studies have been made using different methods and since up to the late 1970s, analytical techniques for determination of cadmium were non-sensitive and not accurate at the level observed in foods. Furthermore the total diet method utilized earlier tends to result in overestimates (8). Using non-comparable data, no conclusions can be drawn about trends of non-nutrient concentration. A non-nutrient database with contents presented in Table II enables a decision about whether there are enough data to observe the trends of non-nutrient concentrations or dietary intake.
Trend of Total Mercury Concentration in Fish and Intake in Different Socio-economic Groups
In a recent study, we have analyzed the intake of mercury using the analytical data on these contaminants and the Finnish Household Survey for food consumption data (of Louekari, Verta, & Mukherjee, unpublished data). Some results of that and another study (9) are presented to illustrate how a non-nutrient database can be used for estimation of non-nutrient intakes in different groups of populations or in particular risk groups, and for analysis of different food groups to the total intake.
In Finland, most of the intake of mercury is caused by eating fish, which accumulate methylmercury of the food chain of the lakes. In the study on mercury intake, changes in Hg intake of people of different socio-economic groups during the period of 1967–1990 were observed in the polluted areas, which include 10–15 per cent lakes and coastal waters in Finland. In the study areas, Hg is discharged mainly by the pulp and paper industry and by chloroalkali plants. Our results show that the average pike Hg concentration decreased from 1.52 mg per kg (in 1967– 68) to 0.60 mg per kg (in 1990–91).
The dietary intake of Hg among farmers and white-collar workers living in the study areas was estimated by combining the data on Hg concentrations in food with the data on food consumption during the period of 1967–1990. It was observed that total dietary Hg intake for farmers was 22 and 15 mg per day in the years 1967 and 1990, respectively. On the other hand, the total dietary Hg intake for white-collar workers was 13 and 8 mg per day in the years 1967 and 1990, respectively. The study suggests that although the fish consumption of the Finnish population (except for farmers) has increased slightly, the intake of Hg has decreased remarkably (by 39 per cent on average). This is due to the rapid decline of aquatic Hg discharge especially from the pulp and paper industry. The other reason is that consumers prefer fish species, e.g. rainbow trout, which contain much less Hg than pike and perch.
In compilation of the mercury database, the following problems were faced: First the concentration of “other fresh fish” and “processed fish” were not analyzed, and had to be estimated. We used the average concentration of those fish species, which were not covered in the food consumption study by name but had been analyzed for Hg concentration. These calculations were recorded in the same file as other data on Hg concentration. Second, in the food consumption file some fish (e.g. herring) is presented as smoked, frozen, fresh, salted. Because the Hg concentration is not affected by processing, consumption of these different types of herring were added up and multiplied by the Hg concentration of herring to obtain the total Hg intake from herring.
The Average and Maximum Intake of PCBs
A 1993 study of the intake of polychlorinated biphenyls (PCB) from the Finnish diet was based on measurement of seven PCB indicator congeners in 99 food samples and the Household Survey data. The average PCB intake from food was 15 mg/day or 0.25 mg/kg of body weight per day, and showed no change as compared with estimates from late 1980s. Approximately half of the intake came from fish. Cheese, fats and oils contributed significantly to the intake, since their consumption is relatively high, although the concentration is not at the level observed in fish (up to 2100 mg/kg in pike) (9).
We also estimated the theoretical maximum intake of PCB of an average consumer assuming that the consumer eats food containing the maximum observed concentration of PCB. This theoretical maximum was 41 mg/day which is almost three times the average intake. This theoretical maximum is probably not too far from the actual maximum intake, since in this calculation the food consumption was at the average level. Furthermore, the maximum value in the database is dependent on the number of samples (n was between 3 and 20 in this case). The maximum observed concentration would be higher if the number of samples were greater. People having a high fish consumption and living in contaminated areas, consume the actual maximum dietary intake of PCB (9).
(1) Pennington, J. A. T. (1983) J. Am. Diet. Assoc. 82, 166–173
(2) State Supervisory Public Health Service (1983) Surveillance Program “Man and Nutrition”. Report No. 10, Hague
(3) State Supervisory Public Health Service (1987) Surveillance Program “Man and Nutrition”, Hague
(4) Andersen, A. (1981) Lead, Cadmium, Copper and Zinc in the Danish Diet, Statens Levnedsmiddelinstitut, Copenhagen
(5) Southgate, D.A.T., & Walker, A.D. (1992) Report of FLAIR Eurofoods-Enfant Project 2nd Annual Meeting, Wageningen Agricultural University, Wageningen, pp. 40–43
(6) Louekari, K., & Salminen, S. (1991) Trends Food Sci. Technol 2, 289–292
(7) Van Assche, F., & Ciarletta, P. (1992) Cadmium '92, Cadmium Association, London, pp. 51–54
(8) Louekari, K., Jolkkonen. L., & Varo, P. (1988) Food Add. Contam. 5, 111–117
(9) Himberg, K., Hallikainen, A., & Louekari, K. (1993) Zeit. Lebensmitteluntersuch. -Forsch. 196, 1–5