The European Court of Justice (ECJ) has held that databases that are not protected by the Database Directive (96/9/EC) (the Directive) are also not subject to the Directive’s contractual limitations.
Article 15 of the Directive renders void contractual provisions that interfere with the provisions under Articles 6(1) and 8 of the Directive (Article 6(1) and Article 8) concerning the lawful use of databases.
P used screen-scraping software to extract flight data from R’s website and used the data in its price comparison website. R’s website terms and conditions expressly prohibited this and provided that only R’s website was authorised to sell its flights. Price comparison websites could apply to enter into a written agreement with R, which permitted them to access R’s price, flight and timetable information for the sole purpose of price comparison.
R sued P in the Netherlands for infringing its database copyright and sui generis right under the Directive. The Dutch Supreme Court upheld the view of the Amsterdam Court of Appeal that the flight data publicly available on R’s website was not protected by either database copyright or sui generis right. However, it requested a preliminary ruling from the ECJ as to whether, under the combined effect of Article 6(1), Article 8 and Article 15 of the Directive (Article 15), the freedom to use databases that were not protected by the Directive could be limited contractually.
The ECJ held that the Directive did not apply to a database that was not protected either by copyright or sui generis right under the Directive, so that Articles 6(1), 8 and 15 did not stop the author of the database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.
Although a database might correspond to the definition set out in Article 1(2) of the Directive, it would not fall within the scope of the Directive if it failed to satisfy the conditions for database copyright protection under Article 3(1) or sui generis right protection under Article 7(1). Therefore, the provisions on lawful use under Articles 6(1) and 8 could not apply to the database and so neither could the sanction under Article 15 for agreeing contractual provisions that were contrary to Articles 6(1) and 8.
The decision has implications for the business model of websites that not only offer users price comparison, but also allow consumers to buy goods and services directly, without the need to go to the website of the actual provider. Ironically, the fact that a database is not protected by copyright or the sui generis database right results in increased contractual freedom, allowing the provider to prohibit third parties from using its data through screen-scraping in order to sell its goods and services directly to the public.
The underlying issue in this dispute, of wider relevance generally, is therefore contractual: the extent to which website terms and conditions can prevent screen-scraping (at least where the Directive is inapplicable). As the ECJ acknowledged, this is a question of national law. As far as the UK is concerned, the question remains unanswered. In Newspaper Licensing Agency v Meltwater, the Court of Appeal declined to rule on whether an internet user was bound by a website’s terms and conditions in using posted material (see News brief "Copyright in headlines and hyperlinks: writing copyright wrongs“). The answer to the question will be of interest to price comparison websites and consumers as well as internet businesses that would prefer to charge screen-scrapers for the use of their data or avoid them altogether as a way of reducing exposure to price competition.
Case: Ryanair Ltd v PR Aviation BV C-30/14.
First published in the March 2015 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.