In one of the first Court of Justice of the European Union (CJEU) decisions of the year, Ryanair v PR Aviation (Case C-30/14) has produced what is, at first glance, a rather surprising and counterintuitive finding. The result means that, in the right circumstances, the owner of a database may be able to rely on broader rights if they have no intellectual property rights at all.
PR Aviation, a Dutch company, operates several price comparison websites for low-cost flights. Like others in the industry, it collects data through an automated ‘screen-scraper’ process, with software which accesses the airlines’ websites and reads the flight times, fares and so on, before pumping that data into its comparison engine.
One of those airlines is Ryanair, which has been particularly unhappy about this practice. Ryanair objected to its customers being directed away from its own website in this way because it meant that passengers were not provided with important safety information and updates. It might also be assumed that Ryanair would miss out on the potential revenues to be gained from customers following links for other services advertised on its website, such as hotels and car hire.
Ryanair took action against PR Aviation in the Dutch courts, alleging infringement of the copyright and sui generis database rights in its flights database, and breach of its website terms and conditions which expressly prohibited screen-scraping without a licence from Ryanair (which PR Aviation was deemed to accept by accessing the website).
The case reached the Hoge Raad der Nederlanden (the Dutch Supreme Court – the highest national court in the Netherlands). The Dutch courts held that there was no copyright in Ryanair’s database because it was not sufficiently original, and no sui generis database right because there had not been sufficient investment, presumably with one eye on the football fixture cases – see, for example, Football Dataco Ltd v Yahoo! UK Ltd (Case C-604/10). There was no help for Ryanair in respect of IP rights, and so the Hoge Raad turned to the website terms and conditions, which appeared clear on their face: this kind of screen-scraping was contractually prohibited.
PR Aviation cried foul and pointed to the European Database Directive, which seeks to harmonise national laws on the protection of databases (Directive 96/9/EC). In particular, articles 6 and 8 of the directive provide that lawful users of a database must be allowed to access its contents for ‘normal use’, and article 15 prohibits the parties from contracting out of those allowances.
These provisions do not give carte blanche to third parties, but certainly limit the scope of protection available to the database owner. On this basis, PR Aviation said, the contractual terms prohibiting screen-scraping were null and void.
The Hoge Raad was not so sure and referred a question to the CJEU: do the articles 6 and 8 allowances and the article 15 prohibition apply to a database if that database is not protected by copyright or sui generis database right? The CJEU gave a firm ‘nee’: they do not apply.
PR Aviation argued before the CJEU that the definition of a ‘database’ given by article 1(2) of the directive was a broad one – essentially, any collection of independent data arranged in a systematic or methodical way and individually accessible – and so the directive should apply. The CJEU agreed that the definition was broad, but pointed to the fact that, according to the wording of the definition itself, it applies only ‘for the purposes of this directive’.
What are the purposes of this directive? According to the CJEU, they are nothing more than providing for two forms of IP rights for databases, namely copyright in databases and the sui generis database right. The logical conclusion, say the CJEU, is that if a database does not fall within the protection of either of those rights, then the directive does not apply to that database at all, including the articles 6 and 8 allowances, and the article 15 prohibition against contracting out. Therefore, in these circumstances, the directive has no bearing on Ryanair’s website terms and conditions.
A rights comparison
It is now a question for the Dutch courts to decide the enforceability and effect of the Ryanair terms and conditions according to the usual contract and other applicable laws. However, the case has wider implications for owners of databases, and those who wish to use the data contained in them.
Looking at the CJEU judgment, some might say that it is a rather convenient and circular argument to say that the directive does not apply merely because the ‘database’ definition is stated to be ‘for the purposes of the directive’ only. After all, it might be said that the purposes of the directive include the allowances for lawful users. However, as the CJEU pointed out, the allowances granted by articles 6 and 8 are contained within the same sections dealing with database copyright and sui generis database rights respectively.
So, even though those articles do not expressly refer to copyright or database right, they are read as being intrinsically linked to them as exceptions to the rights of the copyright/database right owner (indeed, the heading of article 6 says so; it is perhaps unfortunate that the article 8 heading does not do the same).
Even so, at first glance it might seem strange that a party such as Ryanair is afforded potentially greater protection for its database precisely because it does not have the protection of any IP rights. However, there is something of a quid pro quo here in the alternative scenarios, and database owners do not get it all their own way in either case.
By relying on copyright or database rights, the owner has a right actionable against the world, without being put to the administrative burden of drafting terms and seeking the acceptance of each and every other person (although, that said, it still has the burden of creating something original or making a substantial investment for those rights to subsist). In return, the limit imposed by the directive is that certain allowances are made for lawful users of the database.
On the other hand, where those rights do not subsist, the database owner has the freedom to rely on its contractual terms without any interference from the directive. In order to do so, the owner must make sure that it secures those contractual rights and, even then, they are enforceable only against the other contracted party.
For those seeking to protect their databases within Europe, the way forward may be to hedge your bets. As with other unregistrable IP rights, one can never be 100% sure of the extent to which copyright or sui generis database rights in fact subsist unless and until they are tested in court.
Therefore, the prudent approach may be to impose contractual protections in parallel in the hope that they can provide greater protection should the IP rights fail to help, but with one eye on them being severable from the rest of the contract should the allowances and prohibitions of the directive kick in. All of this could have significant implications for price comparison websites and might require a change to some business models. With any luck, compliance should be a comparatively low cost to pay.
Jim McDonnell, DLA Piper