Database right: infringement by re-utilisation and extraction

The European Court of Justice (ECJ) has held that an internet search engine specialising in searching the contents of databases was extracting and re-utilising the content, and was infringing the database right where the extraction and re-utilisation adversely affected the maker's investment in the obtaining, verification or presentation of the contents.

Summary
Background

Article 7 of the Database Directive (96/9/EC) (the Directive) (Article 7) provides that, where there has been, qualitatively or quantitatively, a substantial investment in the obtaining, verification or presentation of the contents of a database, the maker of the database may prevent extraction or re-utilisation of the whole or of a substantial part, evaluated qualitatively or quantitatively, of the database contents. Re-utilisation means any form of making available to the public of all, or a substantial part, of the contents of a database by the distribution of copies, by renting, by online or other forms of transmission (Article 7(2)(b)).

The ECJ has held that use of a meta search engine can, in certain circumstances, constitute re-utilisation of the contents of a database within the meaning of Article 7(2)(b) (Innoweb BV v Wegener ICT Media BV, Wegener Mediaventions BV, www.practicallaw.com/3-555-4649).

Facts

C owned and managed a website with a searchable database of job advertisements published by employers. M operated a specialist search engine for job advertisements which indexes websites containing job advertisements, including those featured on C's website. M's search engine used metatags, which had been added to each page of C's website by C, in order to redirect end users to C's website where they could consult the database of job advertisements. M's search results also provided hyperlinks to job advertisements on C’s website.

C sued M for breach of its database right, alleging that M had extracted and re-utilised a substantial part of the contents of the database on C's website. The Latvian court found that there had been a breach of the database right, on the ground that there was a re-utilisation of the database.

The Latvian Appeal Court referred to the ECJ the questions of whether the use of a hyperlink to redirect users to C's website constitutes re-utilisation of the underlying database of job advertisements, and whether the use of the metatag data constitutes an extraction from the database.

The Advocate General (AG) opined that a search engine's copying and indexing of an online database will amount to re-utilisation and extraction of the database only if it adversely affects the database maker's investment in obtaining, verifying or presenting the database contents (www.practicallaw.com/w-029-7731).

Decision

The ECJ held that an internet search engine specialising in searching the contents of databases, that copies and indexes the whole or a substantial part of a database freely accessible on the internet and then allows its users to search the database on its own website according to criteria relevant to its content, is extracting and re-utilising the content within the meaning of Article 7. It also held that the maker of the database might prohibit those acts where they adversely affect the maker's investment in the obtaining, verification or presentation of the content, and that this would occur where the acts constitute a risk to the possibility of redeeming the investment through the normal operation of the database.

It was for the referring court to examine whether the conditions laid down in Article 7 were satisfied for the grant of protection by the database right. This included whether the metatags provided by C could themselves be regarded as constituting a substantial part of the protected database.

The concepts of extraction and re-utilisation may refer to any act of appropriating and making available to the public, without the database maker's consent, the results of their investment that deprives the maker of revenue that should enable them to redeem the cost of the investment.

A specialised search engine, like M's, does not use the search forms of the websites on which it enables searches to be carried out, and does not translate in real time the queries of its users into the criteria used by those forms. However, M regularly indexed the sites and kept a copy on its own servers. Also, by using its own search form, M enabled its users to carry out searches according to its own criteria; and those searches were carried out on the data that had been indexed.

While the operation of M's search engine was different from that in Innoweb, M's search engine still made it possible to explore simultaneously the entire content of several databases by means other than that provided for by the database maker. Also, by indexing and copying the content of the websites on its own server, M's search engine transferred the content of the databases that comprised those websites to another medium.

However, it was necessary to strike a fair balance between the legitimate interest of makers of databases in being able to redeem their substantial investment, and that of users and competitors of those makers in having access to the information contained in those databases and the possibility of creating innovative products based on the information. The activities of content aggregators on the internet, like M, also serve to achieve the objective of stimulating the establishment of data storage and processing systems to contribute to the development of the information market.

Comment

This decision emphasises the importance of substantial investment in the obtaining, verification or presentation of the contents of a database as a pre-condition of the subsistence of the database right. The decision also follows the AG's opinion insofar as it apparently accepts the AG's additional condition that infringement of the database right by extraction or re-utilisation also requires there to be an adverse effect on the database maker's investment. It remains to be seen whether the need to strike a fair balance between the interests of database makers and those of content aggregators, as referred to in the decision, could allow courts to decide that extraction or re-utilisation of all or a substantial part of a database, which does not adversely affect the database maker's investment, will not be considered an infringement.

Case: SIA CV-Online Latvia v SIA Melons C 762/19.

First published in the August 2021 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.

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