Today's decision from the Court of Justice of the European Union (CJEU) that, where the Database Directive (96/9/EC) did not apply to a publically available "database" or collection of data, the database provider was free to restrict use of its data using contractual terms of use of their website, may mean that businesses will have more options in tackling screen-scraping activities of aggregation and comparison sites.   By contrast where a database is protected by sui generis rights or copyright (under the Database Directive), database owners may be precluded from restricting legitimate access to their databases by a lawful user, if they have made them publically available.  (Ryanair Ltd v PR Aviation BV (C-30/14), CJEU, 15 January 2015)  

Business impact

  • Website owners may find contractual restrictions on screen-scraping through online terms and conditions of use are easier to rely upon following this decision.  
  • Determining whether the data held on the website is protected by copyright or sui generis database right under the terms of the Database Directive will assist businesses that provide web-based data understand how far they can rely on detailed web terms.  
  • Screen-scraping business models may require some re-assessment as to the risk of multiple breach of contract claims from the owners of the pages from which they derive their data.  
  • Arguably, if a website owner imposes contractual restrictions, a user seeking to screen-scrape data cannot be a "lawful user", so the provision preventing contracting out may not come into play.  However, the Court of Justice did not address this point.   
  • Overall, notwithstanding this technical decision, many businesses will still wisely seek to include restrictions in their online terms on the commercial use of data, screen-scraping, data mining or the use of automated robot tools.

Summary

The case illustrates the somewhat contrary position database owners are in, where the protection offered by the Database Directive against copying and extraction could be less effective than a contractual restriction which may be enforceable, if the database did not qualify for such intellectual property rights.  The notion being that the database right provides a code of protection against systematic extraction and reuse of data, so in return for this protection the database owner should not seek to impose additonal contractual restrictions to enhance that protection and undermine permitted activities.  In this case the Dutch court had already decided that Ryanair's database did not qualify as a protected database under the Database Directive, but the question of whether the contractual restrictions prohibited under the Directive could therefore be used legitimately was still referred to the CJEU.

Under the Database Directive  a lawful user may access a database which has been made available to the public:

  • Article 6(1):  ‘The performance by the lawful user of a database … which is necessary for the purposes of access to the contents of the databases and normal use of the contents by the lawful user shall not require the authorisation of the author of the database. Where the lawful user is authorised to use only part of the database, this provision shall apply only to that part.’  
  • Article 8: 'The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilising insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Where the lawful user is authorised to extract and/or re-utilise only part of the database, this paragraph shall apply only to that part. A lawful user of a database which is made available to the public in whatever manner may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database. A lawful user of a database which is made available to the public in any manner may not cause prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database.’  
  • However, Article 15 prohibits any contracting out of these rights of the lawful user: ‘Any contractual provision contrary to Articles 6 (1) and 8 shall be null and void.’

The question referred by the Dutch court:

Does the operation of the Database Directive also extend to online databases which are not protected by copyright on the basis of Chapter II of the 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 Articles 6(1) and 8 in conjunction with Article 15 [of the Database Directive], may not be limited contractually?

The CJEU's answer was that the Directive "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".

The CJEU left it to the national courts to decide whether a particular database qualifies for protection under the Database Directive and the issue of "lawful use" was not examined.