At the beginning of 2015, the Court of Justice of the European Union (“The Court”) rendered a judgment (EUCJ, aff. C-30/14) which should serve to reassure database owners irrespective of the nature of these databases. In response to a preliminary ruling posed by the Supreme Court of the Netherlands, the Court has indeed confirmed that the owners of databases which do not fall under the legal protection regime may limit their use by third parties through the adoption of general terms and conditions.
We must attribute this useful clarification to Ryanair. Noticing that an Internet flight search engine had used data (flight times and ticket prices) reproduced from the Ryanair website, even allowing users to reserve a Ryanair flight through this search engine, Ryanair referred the matter to the Dutch courts.
Ryanair pleaded both an infringement of its rights on the collection of data in relation to its flights and a breach of its general terms and conditions. Indeed, the terms and conditions published on the Ryanair website could not be clearer as to the impossibility for any third party to use Ryanair flight data for commercial purposes. Following the dismissal of its claims by the first courts, Ryanair filed an appeal before the Supreme Court of the Netherlands which considered it necessary to request the Court to rule on the scope of application of the European Directive on the legal protection of databases (the “Directive”).
Double legal protection of databases:
The Directive, which was to be transposed into the national law of each Member State, has in fact established a double legal protection regime for databases. In Luxembourg, this transposition was made through the Law of 18 April 2001 on copyright, related rights and databases, as amended by the Law of 18 April 2004.
In short, a database may benefit from protection under copyright law when, by the selection or arrangement of the elements it contains, it can be seen as the author’s own intellectual creation. Copyright applies here to the lay-out, to the structure of the database and not to its content.
The protection of the content of a database is provided by a new right (entitled sui generis right) when the obtaining, verification or presentation of the contents of the database demonstrates a substantial qualitative or quantitative investment by the producer of the database. The investment may take different forms (financial, technical or human). Where applicable, the copyright and the sui generis right may of course be applied cumulatively to the same database. When a database is protected, both its author and producer benefit from exclusive rights which they may exploit themselves or grant to third parties through a licence (such as reproduction and translation rights, the right to distribute the database to the public, or the right to extract or re-use all or a substantial part of the contents of the database).
In consideration for these exclusive rights, the author and producer cannot object to a legitimate user (namely an authorised third party or a third party with access to a publicly available database decided at the initiative of the producer or author) performing certain actions in relation to the database. Thus, the producer of a database which will be made available to the public may not prevent a legitimate user from extracting and/or re-using insubstantial parts of the contents of the database, regardless of the purpose of this action.
In order to maintain the balance between the authors’ and producers’ exclusive rights and the rights of legitimate users, the European legislator ensured that the provisions on the rights of legitimate users were mandatory and that any contractual provision to the contrary would be considered null and void. This provision is at the heart of the judgment rendered by the Court on 15 January 2015.
The lesson and impact of the Ryanair judgment:
In the Ryanair judgment, the Court intelligibly states that the legal regime implemented by the Directive only applies to those databases which benefit from copyright and/or sui generis right protections and that consequently the mandatory provisions in relation to the rights of legitimate users of databases do not apply to “simple” databases, i.e. unprotected. The owner of such an unprotected database is entitled to limit the rights of third parties by way of imposing general terms and conditions, provided that these terms and conditions comply with the applicable national law. This solution should be welcomed.
Indeed, when the owner of a simple database does not have exclusive rights conferred by law, there is no need to guarantee a balance with potential third party rights. On the contrary, the only means available to the owner of the database to restrict its use by third parties is by way of a contract. A contract may also be used to govern the use of databases whose legal protection has expired.
In practice, however, contractual limitations governing the use of unprotected databases may only be binding on third parties who were already aware of these limitations and who had accepted them, which the plaintiff must prove in the event of a dispute and which may be subject to interpretation by the courts.
In the Ryanair matter, the Court was careful to point out that the company that had copied Ryanair’s flight data without authorisation had previously agreed to Ryanair’s general terms and conditions by ticking the relevant box. If a third party had taken Ryanair data, not from the airline’s website but from the price comparison website, Ryanair’s general terms and conditions would not have applied. In principle, contracts are only effective between the contracting parties and are not binding on third parties who have not agreed to the contractual provisions.
Ultimately, the judgment rendered by the Court opens up new prospects for owners of databases not protected by the law (particularly those accessible online) and they cannot be advised strongly enough to define the use of their databases by way of general terms and conditions clearly presented to internet users. However, if data are copied in chain by third parties, the contractual freedom granted to owners of simple databases will not be as effective as the exclusive rights enforceable against all third parties that are granted to the author of an original database or to the producer of a database having benefited from a substantial investment.