Dutch company PR Aviation operated a website that allowed customers to compare the prices of various low-cost airlines. This was achieved by a so called meta search engine representing a web instrument that transfers user queries to multiple other third party search engines simultaneously. By providing the low-cost flights comparison service PR Aviation ‘scraped’ the relevant flight information and prices from the Ryanair’s website. However, each user who accessed the services or the content of Ryanair’s website accepted specific terms and conditions which were to be followed when using the web service. Those contractual terms, however, contained a clause which prohibited any ‘scraping’ practices without acquiring a prior authorization or written licensing agreement from Ryanair. The database of Ryanair which was the subject of scraping did not qualify for neither copyright nor sui generis protection under the Database Directive. The CJEU was addressed with the question whether the other provisions of the Database Directive were applicable to databases such as Ryanair’s.
Articles 6 (1) and 8 of the Database Directive provide exceptions from the copyright and sui generis rights when a “lawful user” of a public database accesses and uses the contents of a database. Furthermore, pursuant to Article 15 of the Database Directive any contractual prohibitions of such a lawful use are deemed void. However, Ryanair had imposed just the same kind of ‘scraping’ prohibition in its terms and conditions.
The CJEU held that since the Database Directive only applies to databases protected by copyright or the sui generis right the holder of a publicly accessible database, which does not fall under the scope of the Directive, is free to determine by contract and in compliance with the applicable national law the conditions of use of its database. Hence, Ryanair was free to prohibit meta search engines from ‘scraping’ its website content.
The question of whether the extraction of insubstantial parts from a database (but systematically) constitutes an infringement was observed by the CJEU in Case C‑202/12, Innoweb BV v Wegener ICT Media BV, Wegener Mediaventions BV. The defendant – Innoweb, ran a second-hand car dealing website called GasPedaal, which utilized a search engine allowing users to carry out a simultaneous search over several collections of car advertisements listed on third party sites. One of those sites was owned by the claimant in the main proceedings – Wegener, and was called AutoTrack.
In response to each query only a very small part of the contents of Autotrack’s collection was displayed since the search results were determined by the user’s individual search criteria selected through GasPedaal. However, around 80% of all search queries on Autotrack were redirected searches from GasPedaal. This forced Innoweb to seek defense against the infringement of its sui generis right over the database. Article 7 (2)(b) of Directive 96/9 sets forth that a database owner can prohibit ‘any form of making available to the public 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’. However, what is to be understood under the term ‘substantial part’ is not specified in the definition of the concept of ‘re-utilisation’ as such.
Before all, the Court came to the conclusion that GasPedaal did ‘re-utlize’ the content of Wegener’s database. According to the CJEU a meta search re-utilizes the whole or a substantial part of the contents of a database, when it:
Next, when considering whether a substantial part of the database had been re-utilised, the CJEU acknowledged that although a small number of results were shown after each query, the meta search engine was able to search the entire contents of the database. The number of results displayed was therefore found irrelevant and the CJEU held that a substantial part of the database was re-utilised.
The Court found that the end user when represented with a set of car-ads after a search query might not even visit the original database websites since he would be presented with sufficient information on the meta search engine website. Thus, GasPedaal provided users with a route to the information in the AutoTrack database which was different to that one which was intended by the database maker. This, according to the CJEU, deprived the database maker of revenue which should have enabled him to redeem the cost of the investment (§ 37) According to the CJEU a meta search engine as the one in question “creates a risk that the database maker will lose income” (§ 41).