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Using someone else’s database

What is the scope of legal protection of databases? Can lawful users make unlimited use of them? Can the creator of the database limit access to it? The courts had to address these issues in a dispute between an airline and an operator of an online search engine for discount air tickets.

Ryanair Ltd v PR Aviation BV, Case C-30/14 (Court of Justice judgment of 15 January 2015)

The dispute proved complex enough that it was necessary to seek a preliminary ruling from the Court of Justice of the European Union concerning interpretation of the Database Directive (96/9).

Unagreed use of database

PR Aviation operated a website comparing tickets offered by low-cost airlines, through which users could buy a ticket upon payment of a commission. The site collected data automatically from the websites of airlines, including Ryanair. To use the Ryanair site, the user had to accept general terms and conditions which prohibited “screen-scraping” (automatic extraction of data from the site for commercial use) without entering into a licence agreement with Ryanair.

PR Aviation never entered into such an agreement with Ryanair, and Ryanair consequently sued PR Aviation in the local court in Utrecht. Relying on Dutch law and the Database Directive, it accused PR Aviation of violating the rights to its database and sought an order to cease and desist these unlawful practices. As Ryanair pointed out, under the directive:

  • “Databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright” (Art. 3(1)—copyright protection).
  • “Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database” (Art. 7(1)—sui generis protection).

The local court upheld the allegation of infringement of Ryanair’s copyright to the database but denied the claim of violation of the Database Directive and the Dutch database protection act.

Both parties appealed. Ryanair challenged the holding by the lower court that the database from Ryanair’s website does not qualify for protection under the Database Directive.

The court of appeal in Amsterdam set aside the judgment below and denied Ryanair’s cross-appeal. The court held that while the database is subject to copyright protection under Dutch law, there was no copyright violation because the “screen-scraping” by PR Aviation was a normal and legitimate use of the website. The database was not subject to sui generis protection under the Dutch database protection act because Ryanair did not prove that it had made a substantial investment in creating the database, which is a prerequisite for protection.

Under Art. 6 of the directive, copyright protection is limited insofar as a lawful user may access the contents and make normal use of the contents without authorisation of the owner. And under Art. 8 of the directive, the maker of a database subject to sui generis protection which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilising insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Art. 15 of the directive provides that any contractual provisions contrary to these rules (Art. 6 and 8) are null and void.

Thus even if PR Aviation had a licence agreement with Ryanair as referred to in the Ryanair terms and conditions which prohibited “screen-scraping” for commercial purposes, that provision might be invalid if the database were subject to protection under the directive. The question then is what happens if the protection of the owner’s rights to the database is not subject to the directive.

Ryanair filed a cassation appeal with the Supreme Court of the Netherlands, which found a need to seek a preliminary ruling from the Court of Justice concerning interpretation of the Database Directive.

Can free use of a database be contractually limited?

The question submitted was whether the operation of the Database Directive also extends to online databases which are not protected by either copyright or by a sui generis right under the directive, in the sense that the freedom to use such databases through the application of Art. 6 and 8 in conjunction with Art. 15 may not be limited contractually.

The Court of Justice held that a database which is not covered by the Database Directive is protected only under national law, and the directive does not preclude the author of such a database from laying down contractual limitations on its use by third parties.

The court stressed that the directive sets out to achieve a balance between the rights of the person who created a database covered by the directive and the rights of lawful users of such a database. If the creator of the database is not entitled to protection under the Database Directive or regulations implementing the directive, it must protect its own rights, which it may do by concluding agreements as permitted under national law. Therefore it is permissible to limit the use of a database notwithstanding the directive (Art. 6, 8 and 15) when the database is not subject to protection under the directive.

Contrary to the objections of PR Aviation, this interpretation of the directive does not reduce the interest of database creators in seeking protection under the directive. Whether a database is protected by the directive depends on the objective characteristics of the database, not the intent of the creator of the database. Therefore, either the database is protected by the directive and also subject to the limitations on that protection, or the database is protected only by national law and limitations on the protection under national law are also governed by national law.

Both the directive and national law allow for protection of databases

From the legislative point of view, the judgment by the Court of Justice is not particularly surprising. It appears justified to take the view that if an entity does not enjoy the protection of a directive, neither must it comply with the limitations provided in the directive.

From a practical point of view, however, if, like the Dutch courts, other courts find that data provided on airlines’ websites are not protected under the Database Directive, then essentially all airlines will be able to protect their databases through the terms and conditions for use of their websites, contrary to the provisions of the directive.

Aleksandra Łukowska, Intellectual Property Practice, Wardyński & Partners