First published in the January/February 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.
The European Court of Justice (ECJ) has held that using a dedicated meta search engine can, in certain circumstances, amount to re-utilisation of the contents of a database under Article 7(2)(b) of the Database Directive (96/9/EC) (the Directive).
The Directive establishes a sui generis database right for the maker of a database to prevent extraction or re-utilisation of the whole, or a substantial part, of the contents of the database (Article 7(1)) (Article 7(1)). 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 Directive).
W provides access through its website to an online collection of second-hand car sale advertisements, updated daily. Using the W search engine, the user can carry out a targeted search for a vehicle on the basis of various criteria.
I provides a meta search engine through its website that is dedicated to car sales. Through a single query on I’s meta search engine, the user can simultaneously carry out searches of several collections of car advertisements listed on third-party sites, including W’s website. The collated results are then are merged into one item with links to all the sources where that car was found. Using I’s meta search engine, users can search through W’s collection on the basis of specific criteria and in real time.
W successfully sued I for infringement of its sui generis database right. I appealed, and the Hague Court of Appeal stayed the proceedings pending a reference to the ECJ for a preliminary ruling.
The ECJ held that, in these circumstances, using I’s meta search engine would infringe W’s sui generis database right. Article 7(1) must be interpreted as meaning that an operator who makes such a dedicated meta search engine available on the internet re-utilises the whole or a substantial part of the contents of a database protected under Article 7, where that dedicated meta engine:
- Provides the end user with a search form that essentially offers the same range of functionality as the search form on the database site.
- Translates queries from end users into the search engine for the database site in real time, so that all the information on that database is searched through.
- Presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database site for presenting results.
Key factors underlying the court’s reasoning were:
- The end user no longer needs to go to W’s website, since he can consult the contents in real time through I’s website. Therefore, W would lose the income (for example, from advertising) that would otherwise enable it to recoup the investment costs of setting up and operating the database.
- The end user has access to W’s database that is different from the access route that W intended, while providing the same advantages in terms of searches.
- The “making available” in Article 7(2)(b) of the Directive is to the public, as anyone can use a dedicated meta search engine. The re-utilisation involves a substantial part of the contents of W’s database as the entire contents of that database can be searched as though the query were entered directly into W’s search engine. The fact that only part of the W database is actually consulted and displayed on the basis of the search criteria specified by the end user is irrelevant, and does not detract from the fact the entire W database is made available to that end user.
The court equated the making available of an access tool (namely, the dedicated meta search engine into which end users key in queries for translation into the search engine of the protected database) with the making available of the entire contents of the database.
While the ruling is fact-specific, operators of dedicated meta search engines should review their operations if their business model gives end users the means of searching all the data in a third-party website without the need to visit that site. A key element of the decision appears to have been the high degree of similarity between the search criteria on W’s website and the search results obtained by I’s meta search engine, which provided the end user with the same range of functionality as the search on W’s website.
A dedicated meta search engine does not have its own search engine scanning other websites. Instead it makes use of search engines from other websites covered by its service, transferring queries from its users to those other search engines. This features differentiates meta search engines from general search engines based on an algorithm, such as Google or Yahoo, which are unaffected by the ruling.
Case: Innoweb BV v Wegener ICT Media BV, Wegener Mediaventions BV, C-202/12.
First published in the March 2014 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.