May 28, 2015

This article was written by Alexander Ross, Partner, Wiggin LLP and first published in Entertainment Law Review, April 2015.

Background

PR Aviation operates a website on which consumers can search through the flight data of low cost airlines, compare prices and book flights. It obtains the necessary data to respond to individual queries by automated means, i.e. by “screen scraping” datasets on other websites, including Ryanair’s website, which is also accessible to consumers.

Ryanair’s website at the relevant time displayed terms and conditions which inter alia provided as follows:

“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 this website.

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

No such licence had been issued to PR Aviation.

Ryanair claimed that PR Aviation had infringed its copyright and/or database right relating to its dataset and that it had acted contrary to the terms and conditions of use of its website.

The Dutch courts rejected the infringement claims, but on appeal the Dutch Supreme Court referred the case to the CJEU for guidance. The question asked was whether the Database Directive covers databases (such as Ryanair’s) which are not protected either by copyright or by the sui generis right. If it does, the limits on contractual freedom which result from arts 6(1), 8 and 15 of the Directive would also apply to such unprotected databases. Articles 6(1) and 8 set out rights of extraction and other use of databases by lawful users, and art.15 states that any contractual provision contrary to arts 6(1) and 8 is null and void.

Decision

The CJEU1 was clear that databases that are protected neither by copyright nor by the sui generis right under the Directive do not fall within the scope of the Directive for any other purpose. Contrary to PR Aviation’s assertions, it held that the fact that a database may fall within the definition of a database in art.1(2) of the Directive is not sufficient to bring it within the scope of the Directive’s provisions governing copyright and/or the sui generis right if the reality is that it fails to satisfy either the conditions of application for copyright protection laid down in art.3(1) or the conditions of application for the protection by the sui generis right in art.7(1).

The court said that art.6(1), which under certain conditions authorises a lawful user of a database to perform the restricted acts referred to in art.5 without the authorisation of the author of a database, falls, like art.5, within the chapter of the Directive on copyright, and therefore is not applicable to databases not protected by that right. Similarly art.8, which sets out other rights of a lawful user of a database, is in the chapter of the Directive concerning the sui generis right and does not therefore apply to databases not protected by that right. Moreover, art.15, which declares any contrary contractual provisions null and void, refers only to arts 6(1) and 8.

It was therefore clear to the CJEU from the purpose and structure of the Directive that arts 6(1), 8 and 15, which together set out and protect certain mandatory rights for lawful users of databases, are not applicable to a database which is not protected either by copyright or by the sui generis right under the Directive, with the result that the Directive does not prevent the operator of such a database from applying contractual restrictions on the use of such a database.

Comment

At first glance this decision suggests the curious position that the owner of a database that does not enjoy either copyright or sui generis right protection under the Directive is arguably better able to protect its database than if it is protected by the Directive. It is perhaps for this reason that the CJEU was at pains to emphasise the protection offered by the Directive to qualifying databases. However, the reality of contractual protection is rather different, for two principal reasons.

First, the mandatory rights granted under arts 6(1) and 8 are granted to “lawful users” only, and as the CJEU explained, that phrase means “third parties authorised by that person to use the database”.2 It seems doubtful that*C.T.L.R. 104  PR Aviation was ever in the position of being a lawful user of Ryanair’s database within the meaning of the Directive. The mandatory rights are there to govern database access agreements so as to enable them to operate effectively, but they are carefully limited to access that is fair and necessary. It would follow that, in the hypothetical case where the Directive applies to and protects a database, the mandatory access provisions will only apply to users who already have contractual access to that database, and even then only to the extent that they permit access “for the purposes and in the way set out in the agreement with the right-holder” (Recital 34). It may be that website terms and conditions which grant users access to an online database amount to such an agreement, but if they do, they will be sure to restrict usage of the database on the basis dictated by the owner.

Secondly, there is some doubt as to the level of protection that can be achieved by means of contractual provisions. The court noted that where a database falls outside the Directive its protection will be determined by national law, i.e. by a combination of national rules of copyright and other law on the one hand, and by enforceable contractual provisions on the other. This decision sheds no light on the question of whether Ryanair’s contractual terms were enforceable, since that is a question for the national courts to decide. Ryanair has brought a number of cases against travel agents and price comparison operators recently in France, Spain, Germany and Ireland. In each case Ryanair claimed on a number of heads, including breach of contract (its website terms and conditions) and infringement of its database right. What is interesting is that of the reported cases, it seems that only the Irish court upheld the validity of Ryanair’s website terms of use. In other cases the defendant was held to be acting as agent or facilitator on behalf of its users, and therefore it was not in breach of the website terms. There is therefore no certainty on the legality of screen scraping where copyright and database rights are not present. That represents mixed news for the online price comparison industry, and therefore for consumers, who should now be aware that price comparison websites may not be legally able to show a comparison of all providers.