Ryanair scrapes home in database dust-up

Case C‑30/14, Ryanair Ltd v PR Aviation BV is a real quickie.  The request for a preliminary ruling from the Court of Justice of the European Union (CJEU) was only made a year ago, on 17 January 2014, -- and, spared the excitement of Advocate General Bot's Opinion, we already have the CJEU's response.

The facts are straightforward. PR ran a website on which consumers could search through the flight data of low-cost air companies, compare prices and, on payment of commission, book a flight.  It took the data it needed, in order to satisfy consumers' requests, from a dataset linked to the Ryanair website which was also accessible to consumers. So far as Ryanair was concerned, anyone accessing its own website had to accept its general terms and conditions by ticking a box to that effect. These contained the following clauses:

‘2. Exclusive distribution. This website and the Ryanair call centre are the exclusive distributors of Ryanair services. Ryanair.com is the only website authorised to sell Ryanair flights. Ryanair does not authorise other websites to sell its flights, whether on their own or as part of a package. …

3. Permitted use. You are not permitted to use this website other than for the following, private, non-commercial purposes: (i) viewing this website; (ii) making bookings; (iii) reviewing/changing bookings; (iv) checking arrival/departure information; (v) performing online check-in; (vi) transferring to other websites through links provided on this website; and (vii) making use of other facilities that may be provided on the website. 

The use of automated systems or software to extract data from this website or www.bookryanair.com for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison.’

Relying on Directive 96/9 (the Database Directive) and the local Dutch database and copyright statutes, Ryanair claimed that PR had infringed its rights relating to its data set and that it had acted contrary to the terms and condition of use of its website which the latter had accepted; Ryanair asked for an injunction and damages.

The Rechtbank Utrecht dismissed Ryanair’s claim in so far as it was based on an infringement of Directive 96/9 and the local Database Law, but allowed it under the copyright law. PR appealed and Ryanair cross-appealed to the Gerechtshof te Amsterdam, which both set aside the judgment of the Rechtbank Utrecht and dismissed Ryanair’s cross appeal.  Ryanair then appealed to the Hoge Raad, which decided to stay the proceedings and to refer the following question to the CJEU for a preliminary ruling:

‘Does the operation of [Directive 96/9] also extend to online databases which are not protected by copyright on the basis of Chapter II of [that directive], and also not by a sui generis right on the basis of Chapter III, in the sense that the freedom to use such databases through the (whether or not analogous) application of Article[s] 6(1) and 8 in conjunction with Article 15 [of Directive 96/9], may not be limited contractually?’

This morning the CJEU ruled as follows:

Directive 96/9 ... must be interpreted as meaning that it is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.

Does this ruling make sense? It does seem strange that the owner of a non-original database which has no copyright protection has a greater degree of contractual freedom than the owner of a database that enjoys protection under the Directive. However, one might say that the limitations on the rights of the owner of a protected database are a quid pro quo for its being protected in the first place -- not that this would be a logical justification for the outcome.

There's a thoughtful note by fellow blogger Eleonora on the IPKat weblog here, which has already attracted some comments.

Database Rights, Dutch Law, Contract Law and Ryanair

Here's a knotty case.  Not quite copyright, but eiusdem generis enough to be of interest to readers of this blog.

This blogger has only just become aware of case number C-30/14  with which the CJEU has been seized since 22 January, as fully reported in January in the astonishingly brilliant EU Law Radar Blog here.

In it, the Dutch Supreme Court has asked the CJEU to opine on the compatibility of Dutch copyright/database rights law with the European law acquis as well as the question as to whether contractual restrictions (in Ryanair's terms of use) can trump the lawful user exception under the Database Directive.

PR Aviation, the operators of a website wegolo.com [we go low - geddit?] run an airline comparison site.  They allow users to search across multiple airlines, including Ryanair - and Ryanair, not being happy about this, sued PR Aviation.  Note that this does not seem to be a case of scraping - as the Dutch lower court found an allegation of scraping not to have been proved.

The Dutch courts appear to have found that the Ryanair booking system was protected neither by copyright nor by the sui generis rights under the Database Directive but it is protected as a database under an arcane provision of the Dutch Copyright Act of 1912 which the Dutch parliament expressly legislated to survive the implementation of the Database Directive, even though it affords protection to content that is unprotectable under that Directive.

The Dutch Supreme Court then looked at the Directive and said that, even if the 1912 law was compatible with the Directive (a point about which there is considerable doubt - as even the court was willing to admit), then the rights of lawful users under Articles 6 and 8 of the Database Directive and, importantly, the prohibition on contractual override under Article 15 of the Directive as a matter of principle also apply to protect users of the databases that are not protected by the Directive.  So the Dutch court's approach seems to be that the exceptions set out in the Directive apply to a broad range of databases, even beyond those which are granted IP protection by the Directive.

They therefore asked the CJEU the following question (and thanks to EU Law Radar's Stephen Vousden for the informal translation)

Does the scope of the Database Directive also cover online databases that are neither protected in copyright under Chapter II of the Directive nor protected as a sui generis right under Chapter III of the Directive and yet where the freedom to use such databases cannot be restricted in contract by dint of the (whether or not corresponding) application of Articles 6(1) and Article 8, when read together with Article 15 of the Database Directive?

This Blogger would suggest the answer that (i) after SportRadar  and Svensson the Court will find that the continued protection of rights that are not contemplated under the Database Directive is not compatible with the harmonisation principle of the Directive but that (ii) a Member State court should therefore not in any event deny the protection of Article 15 to a user of a database, regardless of whether that Directive is protected under the Directive, or under separate legislation incompatible with the Directive.   It seems rather unlikely that the Court will rule that the proper construction of the Directive is that Article 15 applies to all databases, whether protected under the Directive or otherwise - but anything is possible.

Court of Appeal takes a punt on database rights

Time flies and the flow of significant copyright cases continues at a pace that makes it hard for even the best-organised of blogging teams to pick up each decision as it comes out, dedicate the depth of care and attention to it which it (and the blog's readership) merits, and then post a polished analysis.  This post on yesterday's 109-paragraph ruling of the Court of Appeal for England and Wales (Lord Justice Lloyd, Lord Justice Lewison and, giving judgment for the court, Sir Robin Jacob) in Football DataCo & Others v Stan James Plc & Others and Sportradar GmbH & Others,[2013] EWCA Civ 27. is therefore a good deal shorter than its content deserves.

The judgment reveals that the appeal covered two separate actions, heard together, on the subsistence and infringement of database right in data relating to football matches. The claims were brought by the English and Scottish Football Leagues and their licensees against Stan James plc, a betting company and Sportradar, an online sports data provider. All parties had appealed various findings by Mr Justice Floyd in his first instance decision of 8 May 2012, noted by the IPKat a day later here.

The proceedings concerned only joint liability aspects of each claim, and the Court of Appeal held as follows, at [106]:

"(a) There is a sui generis database right in FDC's Football Live database; 

(b) Both before and after defence UK punters [not the Oxford and Cambridge sort, but those who place bets] extract a substantial part of that database when they use the pop-up facility on the Stan James website [the reference to 'before and after defence' is to the fact that the defendants changed their practice after they filed their defence];

(c) Both Stan James and Sportradar are joint tortfeasors with the UK punters; and

(d) There are no defences of abus de droit or infringement of Article 10 of the ECHR."

In reaching these conclusions, however, the Court made a number of findings that have potential implications beyond the immediate subject matter of these actions. The judgment seems to provide that a website owner anywhere in the world who hosts a hyperlink that a UK user uses to access infringing content will be jointly liable with that user for the infringing acts. This finding has potentially enormous implications in the sphere of the internet.

The Court of Appeal has also found that a database which qualifies for protection under the database right regime may exist within a literary work which is protected by copyright, there being no conflict in the two rights subsisting simultaneously. As such it seems that literary works can be reclassified as databases by claimants. This may seem fanciful but, in doing so, a copyright owner can strengthen his hand in any dispute. The test for infringement of the sui generis database right is very different to that of regular copyright, since it's directed towards the protection of investment and not creativity. Additionally there are no "fair use" type defences available under the Database Directive. As such, for example, a news reporting agency may claim that database rights underpin its news report and, on that basis, seek to prevent republication by a rival.

Football Dataco: the transmission theory may apply…

Today the CJEU held, in Football Dataco v Sportradar (Case C‑173/11), that the sui generis right* (the database right) could apply under the Database Directive in the country of transmission (the country where the database is re-utilised) if there is evidence that the person re-utilising that data intended to target the public in that country.

Essentially the CJEU is saying that "at least" the transmission theory applies (it does not  specifically address the emission theory), as long as there is evidence of an intention to target users in the country of transmission. This is a win for rightsholders as it prevents infringers from carefully selecting where to place their servers in the hope of avoiding the jurisdiction of the courts of other countries.

Whilst not a copyright case, the CJEU's decision is likely to be used as guidance as to where communication to the public occurs, therefore is also relevant to copyright infringement.

Background

The reference was made in proceedings between Football Dataco and others and Sportradar concerning the alleged infringement by Sportradar of Football Dataco's sui generis right in its football database.

Football Dataco collects football statistics as matches are in progress which it places in a database. It argued that the obtaining and/or verification of that data required substantial investment and that the compilation of the database involved considerable skill, effort, discretion and/or intellectual input.

Sportradar provides live online results and other statistics relating to these matches. Football Dataco claimed that Sportradar obtained this data by copying it from Football Dataco's database. Further, it argued that infringement took place not only in the country from which the data was sent by Sportradar but also in the country in which the users were located, in this case the UK.

Sportradar on the other hand said that its data was generated independently. It argued that in accordance with the emission theory, any act of infringement occurs only in the place from which the data is sent.

Referral to the CJEU

In April 2010 Football Dataco brought proceedings against Sportradar in the High Court for infringement by Sportradar of their sui generis right. Both parties appealed the High Court's decision. The Court of Appeal referred the following question to the CJEU:

"Where a party uploads data from a database protected by the sui generis right under Directive 96/9/EC … onto that party’s web server located in Member State A and in response to requests from a user in another Member State B the web server sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on its screen:

(a)      is the act of sending the data an act of "extraction" or "re-utilisation" by that party?

(b)      does any act of extraction and/or re-utilisation by that party occur
(i)      in A only,
(ii)      in B only; or
(iii) in both A and B?"

The CJEU's decision

The CJEU held that  Sportradar's actions constitute "re-utilisation" of data from Football Dataco's database. They said that while the question of whether Sportradar's actions constitute "re-utilisation" is separate from the question of where that act occurs, the sui generis right is protected by national legislation (albeit that such legislation must implement the Database Directive). Therefore the right is "limited in principle to the territory of that Member State, so that the person enjoying that protection can rely on it only against unauthorised acts of re-utilisation which take place in that territory".

The CJEU went on to say that the mere fact that a website is accessible in a particular country is not a sufficient basis for concluding that the operator of the website is performing an act of re-utilisation in that country. This must be the case because otherwise websites targeted at one country, but accessible in another, could be caught by the laws of that other country.

That said, the CJEU was clear that Sportradar's argument that an act of re-utilisation must in all circumstances be seen as located exclusively in the country from which the data is sent was not right.

The question is whether there is evidence of an intention on the part of the website owner to target users in a particular country.

In this instance the CJEU said that there could be such evidence as the data on Sportradar's server includes data relating to English football league matches; Sportradar granted right of access to its server to companies offering betting services to the public in the UK; and although it is a German company, Sportradar's website is in English. Whether this is sufficient evidence of an intention to target the public in the UK will be for the Court of Appeal to determine.

The CJEU concluded that the Database Directive should be interpreted as meaning that:

"the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer's memory and display on its screen, constitutes an act of 're-utilisation' of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess."

This clarification of where the sui generis right applies will have important consequences on the licensing of rights and on the look and feel of websites. The CJEU's comment that infringement occurs "at least" in the country of transmission where there is evidence that the infringer intended to target the public in that country implies that infringement may also occur in the country of emission. The CJEU's decision does not specifically address this point.

This decision may also be relevant to copyright, as it is helpful guidance on where communication to the public is likely to be deemed to have occurred.

 

*The sui generis right:

The definition of a database is set out at Article 1(2) of the Database Directive as meaning a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

The Database Right, or sui generis right, which is set out at Article 7 of the Database Directive, provides that where there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents of a database, the maker of that database shall have the right to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.

The Database Directive goes on to give the following definitions:

 "extraction" means the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form; and

"re-utilisation" means 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 on-line or other forms of transmission

"Finally the Directive says that the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted. "

This was implemented in the UK by the Copyright and Rights in Database Regulations 1997, which amended the Copyright Designs and Patents Act 1988.

"Cast your seeds upon the database ..."

Which one is the seed ...?

In Beechwood House Publishing Ltd (t/a Binley's) v Guardian Products Ltd and another [2010] EWPCC 12, Judge Colin Birss QC gave judgment in a database right dispute in the Patents County Court. In an application for summary judgment, in which the defence was that the dispute had already settled, the court persuaded the parties to agree to treat the application as the trial of the settlement issue and then decided it properly, achieving a substantial saving of both time and expense.

The database in which infringement was alleged was "Binley's Database of GP Practices", which began in 1994.  This consists essentially of the names and addresses of individuals (such as nurses and doctors) associated with general medical practices. The edition allegedly infringed apparently names 159,576 individuals, located at 11,480 general practices within the UK. In pre-database right days this would have been a traditional copyright infringement claim.  Anyway, as the judge, explained:

"4 In August 2007 the claimant found clear evidence that the first defendant was using information from the claimant's database. This was because the claimant puts a few seeds in its database. The seeds are dummy entries which do not correspond to real people. They are fictitious entries with addresses corresponding to the claimant's staff. Thus the claimant will find out if someone is using data from its database because a letter will be sent to one of the seed addresses. That is what happened in this case and this action ensued.

5 The underlying facts are not in dispute. The mailing to the seed entry took place in about August 2007. The letter was sent by the first defendant. The first defendant obtained the data it used from the second defendant and the second defendant in turn obtained the data in March 2006 from an organisation called Bespoke Database Organisation Ltd ("BDOL"). The data from BDOL included the seed entry. There is no doubt that the BDOL data includes at least one entry from the claimant's database, that is the seed. There is also no doubt that BDOL used the claimant's database as one of the sources for the BDOL data. There is however an issue as to the extent of that use  ... If ... the claimant has a good claim to ownership and subsistence of database right and if ... the BDOL mailing list includes or consists of a substantial part of the claimant's database then it is not in dispute that the defendants infringed the claimant's database rights".

But what evidential value can be placed upon the fact that one or more seeds received a mailing from the defendant? Does this raise an inference of substantiality of the degree of copying? How many seeds were there in relation to the database a a whole? And suppose the defendant mailed only to seeds and not to genuine entries. Anyway, the judge addressed the seed issue thus:

"75 I am ... struck by the claimant's statement that there are "a few" seeds in the database. The claimant has not stated how many "a few" means and has so far refused to tell the defendants how many there are. No doubt that is for the claimant's own good commercial reasons. However it seems to me that one way of gauging the number of entries derived from the claimant's database might be to ask what proportion of the seed entries ended up with the defendants. Such an exercise would no doubt have to be treated with caution but it at least might shed some light on the matter. For example just because only one seed came to light does not mean others were not present. However if only one seed from hundred was present that might suggest a lesser fraction derive from the claimant whereas if "a few" means only 3 or 4 seed entries then that might suggest a rather higher fraction. Although substantiality is not necessarily a purely quantitative matter, some idea of numbers would be a start".

The case will now continue. The 1709 Blog expects events to accelerate since Judge Birss has said plainly that he expects the case to be dealt with very quickly and economically.

The pain of the the plaintiff: what a performance

A recent case note sheds light on a ruling of the Paris Court of First Instance on 8 June on the enforcement of performance and database rights under French law.

The companies in the M6 Group included the French television channels M6 and W9 and the television replay websites www.m6replay.fr and www.w9replay.fr. M6 instituted proceedings for author's rights infringement and unfair competition against SDBS Active, which had made available to the public on its www.totalvod.com and www.tv-replay.fr websites, through deep hyperlinks, a number of programmes that it had placed on its own replay websites  M6 considered that the commercial use of the services of its two sites by SDBS Active infringed its exclusive performance right since SDBS Active was making M6's programmes available to the public without its authorisation.

The Paris Court of First Instance ruled that the redirection of an internet user to a window showing a television programme did not constitute performance of that television programme. In its view, 'performance' consisted of the communication of a work to the public through any process. By making the M6 and W9 replay programmes available to the public, SBDS Active did not itself perform the works, but rather helped the public by providing a link to view them directly on the original websites, not on its own websites. Accordingly performance was thus carried out by the two M6 websites, not by SDBS Active.

Further, even by providing such links SBDS Active still did not breach M6's rights as a database producer. The content of the two websites constituted a collection of audiovisual independent works. M6 might have spent money on the development of such collection, but that company furnished no evidence of making substantial investment in order to establish, verify and present the databases at issue.

In a curious twist, the court ordered M6 to pay €30,000 in damages for disparagement since, in the course of the proceedings, M6 sent a letter to media agencies stating that "TVReplay is a website which redirects the websites of catch-up TV by using, often without the agreement of the TV channels, information about the programmes".

Source: "Online TV replay and author rights", article by Marie-Aimée de Dampierre and Camille Pecnard (Hogan Lovells) for International Law Office, 11 October 2010

Database rights: a reader asks

A reader has posed the following question, to see what the readers of this blog might think:

"Company A purchases the majority share of Company B; a share purchase agreement is signed. The IP clause in the agreement states that Company A has the use of the IP rights of Company B, including Company B's database (a customer list, updated from time to time). After the purchase, Company A merges the information in the database with its own data (with the approval of Company B).

Company B subsequently goes into liquidation. There has been no assignment of the rights in the database, but the database has been substantially changed due to the merging of the data with Company A's own data. I know that, if the merging with the data was a "substantial change" to the contents which would be sufficient to satisfy the requirement for a "substantial new investment", then the amended database would qualify for a new 15 year term of protection. If this is the case, I would think that Company A is the author of the new database, and is entitled to keep using it (and entitled to tell the administrator they can't sell the new database).

However, I don't think Company A can do anything about the database in the form it was in when Company B initially created it, because at that time, Company B was the author of that database".

Do you agree? Please post your comments below.