In a dispute between Ryanair and PR Aviation (PRA) regarding PRA's Dutch price comparison website, the Court of Justice of the European Union (CJEU) has ruled that where a database does not fall within the scope of protection offered by the Database Directive (96/9/EC), the owner of that database is free, subject to applicable national law, to adopt contractual terms and conditions governing the use of that database.
Background
Ryanair brought a claim against Dutch company PR Aviation (PRA) in the Netherlands in relation to PRA's Dutch price comparison website. The website allowed customers to check the prices of low cost flights and to book tickets online upon payment of a commission. Crucially, PRA obtained its online data from a dataset linked to Ryanair's public website (known as screen scraping).
Ryanair's Terms of Use for its website provided that Ryanair.com was the only website authorised to sell Ryanair flights. It further provided that users of the website were not permitted to use it for commercial purposes and that screen scraping was prohibited unless the third party has entered into a licence agreement with Ryanair.
Ryanair issued proceedings in the local court of Utrecht for breach of its contractual terms of use, and infringement of its copyright and sui generis rights under the Database Directive.
The Database Directive (96/9/EC)
The Database Directive provides that databases can be protected in two ways. Firstly, Article 3(1) of the Directive provides that a database which constitutes the author's own intellectual creation will be protected by copyright. Secondly, there is a sui generis right under Article 7 which protects databases for which there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents.
The Directive provides that a 'lawful user' of a protected database is authorised to carry out certain acts necessary for accessing the contents of the database and for normal use of its contents (Article 6). Where a database is publicly available, a database owner cannot prevent a 'lawful user' extracting or re-utilising insubstantial parts of the database's content, evaluated qualitatively or quantitatively for any purposes (Article 8).
Article 15 of the Directive states that any contractual provision that is contrary to Article 6 and 8 will be 'null and void'.
This means that where a database is protected by the Database Directive, users of that website are free to access and make normal use of its contents without the owner being able to prevent this by its terms and conditions.
Consequently, PRA relied upon the terms of the Database Directive and argued that if Ryanair's online database fell within the scope of the Database Directive, the terms and conditions of its website would be null and void as it had the right to make lawful use of the database under Articles 6 and 8.
Journey to the CJEU
In 2010 the local court of Utrecht dismissed Ryanair's claim to the extent that it was based on the Database Directive and the respective national law implementing it. Ryanair appealed this decision but the appeal was dismissed in 2012 by the Court of Appeal, Amsterdam.
Undeterred, Ryanair appealed to the Netherlands Supreme Court. The court requested a preliminary ruling from the CJEU on the question of whether Articles 6(1), 8 and 15 of the Database Directive collectively meant that the freedom to use databases that were not protected by the Database Directive could be limited by contract. The question posed to the CJEU was as follows:
"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?"
CJEU Decision
The CJEU held that the Database Directive only applied to databases protected by copyright or the sui generis right and that this is an issue to be decided by the national courts and in the present case the Dutch courts had held that the Ryanair database was not protected by either right (case reference [2015] EUECJ C-30/14).
Therefore, the provisions of lawful use under Article 6(1) and 8 of the Database Directive could not apply and neither could the sanction for agreeing contractual provisions in Article 15. The court ruled that in such cases the Directive "does not prevent the adoption of contractual clauses concerning the conditions of use of such a database".
So, although Ryanair's online database may not protected by the Database Directive, it can nevertheless protect the content of its website from screen scrapers by relying upon its website Terms of Use, to the extent permitted by national laws.
Conclusion
If the CJEU's ruling is applied, this means that where a database is not protected by copyright or the sui generis right under the Database Directive, the owner of a publicly accessible database is free to determine the conditions of use of that database in accordance with the applicable national law. However, this clearly does not apply where the database is caught by the Directive.
Unfortunately, the application of this ruling may not be as simple as it may first appear. To date, the UK judiciary has been reluctant to be drawn into the thorny issue of the extent to which an internet user is bound by a website's terms and conditions and so it remains unclear how this issue will play out in the English courts.
The ability to restrict use of online databases by contractual terms is an issue that has wide-reaching implications. As businesses grapple with how best to protect their online database content and ever more sophisticated ways of compiling and utilising data are developed, it is highly likely that we will see more CJEU rulings on this issue in the not too distant future.