In this article, we consider a French decision that software that extracts data from a website cannot be used, as it is an act of unfair competition.
The French website societe.com offers internet users access to public data on French companies.
IIEESS distributed software in France enabling users to access and extract data from the societe.com website, without entering the website and therefore without viewing the website’s advertisements.
Societe.com initiated emergency proceedings against IIEESS to seek to end the distribution of this software. Societe.com’s claim was based on unfair competition and infringement of database right.
IIEESS replied that Societe.com was a public data provider and as software users can access the public data directly and for free, Societe.com cannot prevent them from accessing its database. Under Article 342-3 of the French Intellectual Property Code, when a database is made available to the public by the rightholder, it cannot prohibit a person with lawful access from extracting or reusing an insubstantial part (evaluated qualitatively or quantitatively) of the contents of the database; or extracting for private purposes a (qualitatively or quantitatively) substantial part of the contents of a non-electronic database. This is subject to the individual complying with the copyrights or neighbouring rights over the works or materials incorporated into the database.
The Presiding Judge of the Commercial Court of Paris considered that the Societe.com database is protected by sui generis database rights granted to database producers. The judge considered that Societe.com had made financial, human or material investments, but without giving any figure/information about such investments.
Under the French Intellectual Property Code, extraction of a substantial part (evaluated quantitatively or qualitatively) of a database protected by sui generis database right is unlawful, except with the consent of the producer. However, IIEESS only provided a means to extract data from a database and had not extracted the data from the Societe.com website itself. Therefore, the Presiding Judge could not condemn IIEESS on the ground of a breach of sui generis database right.
On 18 June 2008, the Presiding Judge ordered IIEESS to stop distributing this software on the ground of unfair competition. However, in order to justify its decision, the Judge ruled that “by giving access, without its consent and for free to the know how of [societe.com], IIEESS commits unfair competition acts and cannot invoke the provisions of Article L.342-3 of the Intellectual Property Code, since it gives access to qualitatively substantial feature – the reliability – of the database related to the companies [...]”.