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The scope of Database Directive: Ryanair v P R Aviation,

Court of Justice of the European Union, Case C-30/14

Journal: Journal of Intellectual Property Law and Practice

Manuscript ID: JIPLAP-2015-118

Manuscript Type: Current Intelligence

Date Submitted by the Author: 21-May-2015

Complete List of Authors: Gupta, Indranath; O P JINDAL GLOBAL UNIVERSITY, JINDAL GLOBAL LAW SCHOOL Devaiah, Vishwas; O.P.Jindal Global University, Jindal Global Law School

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Current Intelligence

The scope of Database Directive

Ryanair v P R Aviation, Court of Justice of the European Union, Case C-30/14

Summary: The Court of Justice of the European Union in Ryanair v P R Aviation (Case

C-30/14) said that Article 15 of the Database Directive is not applicable when a database

is not protected either under copyright or database right.

Legal Context

The enactment of the Database Directive (96/9/EC) saw a two-tier legal framework

offered under Article 3 and 7 for the protection of databases. Under Article 3, copyright

protection extended to databases was harmonized in Europe. The threshold for such

protection was tied to the requirement of ‘author’s own intellectual creation’ by virtue of

selection or arrangement of the contents in a database. Further under Article 7, there

was introduction of a new database right that safeguard investments made towards

databases that would fall short of the standard expected under the threshold of

copyright protection set under Article 3.

It is of utmost importance to state that the protection under the EC Database

Directive (96/9/EC) is provided only if the data set falls within the ambit of Article 1(2)

which defines database as "a collection of independent works, data or other materials

arranged in a systematic or methodical way and individually accessible by electronic or

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other means." The European Court of Justice (ECJ) in a previous judgement involving

Fixtures Marketing Ltd v Organismos Prognostikon Agnon Podosfairou (Case C-444/02)

held that the definition of database has been given a broad scope under the Directive. It

is difficult to precisely ascertain what all may come under the given definition, although

the use of the words “any form” under Article 1(1) represent that electronic and non-

electronic databases are covered under this definition. Recital 14 of the Directive in

clear terms extends the definition to databases in non-electronic forms.

Further, the scope of the Directive seeks to protect databases either under copyright

or sui generis rights. To extend copyright protection the creator should demonstrate his

own intellectual creation towards the production of a database. Thus, the originality

criterion plays a vital role to ensure copyright protection for databases and the threshold

for such originality is largely based on selection and arrangement of the data rather than

the resources deployed to gather the data. In order to grant sui generis right to a

database the creator has to show 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”. The

scope of the two tier protection under Article 3 and 7 have been elucidated in the case

of British Horse Racing Board Ltd and Others v William Hill Organization Ltd (Case C-

203/02). BHB and Football Dataco Ltd v Yahoo! UK Ltd (Case C-604/10). In the BHB case

with respect to the words, ‘obtaining’ and ‘verification’, the European Court of Justice

(ECJ) came to the conclusion that the protection offered under Article 7 is limited to

investment made towards obtaining and verification of existing materials. Investment

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towards creation of such materials is not counted under the said Article. The ECJ

expressed that investment has to be understood within the context of creation of

databases i.e. from the perspective of using existing material as opposed to creation of

independent materials. The purpose of the database directive is largely to protect

qualitative and quantitative resources used for the storage and processing of existing

information. In the Football Dataco case, the Court of Justice of the European Union

(CJEU) said that the intellectual effort that goes into creation of data is not counted,

while deciding on the issue of overall creativity, which is required under Article 3 to

protect a database under copyright.

Facts

The case involved the dispute related to use of dataset by PR Aviation from the

website of Ryanair. PR Aviation provided online services to customers about air travel

and air fares, which involved comparison of flight data related to low cost airlines. This

enabled customers to compare flight data of various airlines and also to book flight

tickets. A small commission is paid to PR Aviation upon the booking of a flight through

their website.

Ryanair alleged that the services provided by PR Aviation resulted in automated

‘screen scraping’ of dataset from its website whenever an individual initiated an online

query on PR Aviation’s website. According to Ryanair, this breached the terms and

conditions specified on its website, which clearly stated that only Ryanair is the

exclusive distributor of its services and that other websites are not authorized to sell its

flight tickets. The terms and conditions listed on the Ryanair website restrict the users to

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make use of the dataset only for private non-commercial use. Ryanair alleged that PR

Aviation has acted contrarily to the terms and conditions after accepting it. Ryanair

claims that the unauthorized use of dataset provided on its website by PR Aviation

infringed on its right to use the dataset.

The local court in Utrecht dismissed Ryanair’s claim as regards infringement of the

right to dataset as the claim was related to infringement of the Directive 96/9/EC and the

Database Law. However, the local court ordered PR Aviation to refrain from infringing

Ryanair’s copyright in flight data and also pay compensation for the harm caused due to

unauthorized use of the data.

On appeal, the Court of Appeal, Amsterdam set aside the decision of the Utrecht

local court. The Court of Appeal opined that PR Aviation had not infringed any rights as

its use of Ryanair’s flight data will come under the purview of legitimate use under the

Dutch Copyright Act. The Court of Appeal also stated that the terms and conditions

specified on the Ryanair website which seeks to exclude third parties from using the

flight data is contrary to the legitimate use exception provided under Article 24 (a) (1) &

(2) of the Dutch Copyright Act. It also added that Ryanair had not established the

existence of ‘substantial investment’ in the creation of a data set and as such protection

under the sui generis Database Law cannot be claimed.

Subsequently, Ryanair appealed to the Supreme Court of Netherlands on the ground

that the dataset on its website does not come within the purview of works protected by

copyright. Alternatively, Ryanair pleaded that the Court of Appeal had wrongly decided

the matter related to PR Aviation’s use of flight data for commercial purposes which was

in contravention of the terms and conditions specified on its website. Ryanair claimed

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that the data set used by PR Aviation does not come within the purview of either

copyright or sui generis right as mentioned in the Directive 96/9. The Supreme Court of

Netherlands referred to the CJEU as to whether the operation of Directive 96/9 also

apply to online databases that are not protected by copyright or sui generis rights and

whether freedom to use such databases can be limited contractually.

PR Aviation’s assertion that the dataset falls within the definition of database

mentioned under Article 1(2) of the Directive can only be satisfied if it is either protected

by copyright or by sui generis database right. In the context of copyright protection

offered under Article 3 of the Directive, Article 5 authorizes the author of the database to

carry out certain restricted acts. However, Article 6(1) provides the conditions under

which a lawful user can perform the restricted acts stated under Article 5 so as to have

access to the contents of a database without the authorization of the author of that

database. In the context of databases protected by the sui generis database right,

Article 8(1) under certain conditions allows the lawful user of a database to make

insubstantial use of the contents. As a prohibitory measure, a database producer under

Article 15 cannot contract out a lawful user from the rights given under either Article 6(1)

or Article 8(1). Any such exculpatory clause would be treated null and void. The purpose

of the Directive is to protect the creator of the database either under copyright or sui

generis rights. However, in order to ensure that there is balance between the creator of

database and its lawful user the Directive seeks to create exceptions to the rights

provided to creator of database. Any effort by the creator of database to circumvent

these exceptions through contractual provisions is disregarded. Following the

application of the Database Directive, PR Aviation suggested that the terms and

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conditions that essentially restricted the use of Ryanair’s website should be treated as

null and void under Article 15. As a response, the CJEU said that the application of

Article 15 depends on whether the database in question is either protected by Article 3

or 7 and it is limited for the ‘purposes of this Directive’. Therefore, the use of database

may be restricted through contractual means when it is not protected either by copyright

or sui generis database right. The key issue therefore is whether a database is

protected by either copyright or sui generis right. If a database is neither protected by

copyright nor by sui generis right then protection granted to the lawful user under Article

15 does not apply as the database is not protected by the Directive. This means that the

creator of the data set can impose restrictions upon the user through contractual terms.

Thus, any lawful user of such database cannot claim the protection offered by Article 15

of the Directive and is bound by the contractual terms.

Analysis

Since its inception, the database directive has not been free from controversies

surrounding its utility and effectiveness. It was evaluated almost after ten years

subsequent to its passage. The Commission of the European Communities evaluation

report assessed whether the policy goals pertaining to the enactment of the Directive

has been fulfilled especially in the context of enacting the novel sui generis database

right (‘First evaluation of Directive 96/9/EC on the legal protection of databases’, December

2005). This assessment was in furtherance to the overall idea of creating a legal

framework with the objective of protecting a wide range of databases in the information

age. Besides the unproven economic impact, the report suggested that the sui generis

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part of the Directive should either be repealed or amended. This suggestion was not

solely based on the claim of economic impact but to the inherent ambiguities present in

the Directive. There has been specific concern raised in relation to the expectations

surrounding the meaning of the words ‘substantial investment’, which is one of the

foremost requirements under Article 7. The concerns have been exacerbated by the fact

that there is no comparable jurisdiction where sui generis right has been used as a legal

instrument. Further, the judgement of BHB meant that the scope of the Directive as

envisaged at the time of enactment might have been curtailed. The evaluation report

indicates that there are possible difficulties when it comes to balancing the Directive.

This is more so with the sui generis part. The exceptions that are present under the

Directive are there to balance any eventualities.

Given that there is ambiguity in terms of determining whether a database is protected

by copyright or sui generis right it can create an unfair situation wherein the creator of

the database will in most instances use contractual terms to restrict the use of the data

by third party users. This could encourage all creators of databases to deliberately use

restrictive contractual terms to prevent users from utilizing and extracting data.

Excessive reliance on contractual terms would defeat the purpose of the database

Directive and tilt the balance in favour of database creators. Going by the previous

experiences from the two judgements involving BHB and Football Dataco, database

producers might already have a slight edge when it comes to protecting single source

databases. The arguments in these two judgements suggest that there could be

possible situation wherein database producers may indulge in monopoly.

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Practical Significance

In the context of the decision in hand, websites that provide price comparison services

would be deterred from providing such services. Price comparison websites tend to

scrape information from various websites that contain data. The business model of such

websites relies largely on unpaid scraping of content which is relied upon by its

customers. Price comparison websites relying on content scraping will not be able to do

so if websites prefer to use restrictive contractual terms instead of relying on database

protection. If websites that create databases start using contractual terms to prevent

scraping of unauthorized use of their content then online price comparison service

providers will have to accept the restrictive terms and conditions and as such cannot

automatically scrape content without legal implications. Any content scraping that

violates the terms and conditions would result in breach of contractual terms. This would

allow websites that upload databases to sue anyone who has breached the terms of the

contract for damages. Further, the burden of proving that databases fall within the

scope of the Directive will be upon the user as the creator in all likelihood would prefer

to show that the data is neither copyrightable nor protected under sui generis rights.

The CJEU through it decisions in BHB, Football Dataco and the present case has

limited the scope of the protection which is likely to influence future practices wherein

database creators are likely to rely on contractual terms to protect their work instead of

waiting for the court to determine whether their database can be protected by copyright

or sui generis rights.

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Indranath Gupta and Vishwas H. Devaiah, Associate Professor of Law, Jindal Global Law

School, O.P. Jindal Global University. Authors would like to acknowledge the inputs provided by

Indranil Banerjee of Jindal Global Law School.

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