What is commonly known as a “database” might not necessarily qualify as a database in its pure legal sense and might therefore not fall under the regime of the Directive 96/9/EC of the European Parliament and of the Council on the legal protection of databases. This is the core take-away from one of the latest decisions rendered by the Court of Justice of the European Union (CJEU). Based on this conclusion, the judges held that third parties may not use Ryanair’s flight database in reliance on certain statutory limitations set out in the Directive 96/9/EC. Rather, the restrictions set out in Ryanair’s terms and conditions apply as they are not overruled by mandatory European law (see Judgment of 15 January 2015, Case Ref.: C-30/14)
The underlying dispute emerged between the airline Ryanair and the Dutch aggregator of flight information PR Aviation. As part of PR Aviation’s business model the company gathers flight data from airlines using the information available on their websites. Ryanair, however, requests all users of its websites to refrain from commercial use of its flight data. This ban on “screen scraping” is set out in Ryanair’s online T&Cs. PR Aviation disregarded the T&Cs and claim a right to free access to the database under the Dutch provisions that implement the Directive 96/9/EC.
The Court in the first instance, Rechtbank Utrecht, ruled in favour of Ryanair. On appeal level, the Gerechtshof te Amsterdam set aside the first instance judgment and dismissed Ryanair’s cross appeal. It held that PR Aviation had not infringed Ryanair’s rights, given that its conduct formed “normal” and therefore permissible use of the database. In reliance on the Dutch law, it further emphasized that the right to access may not be derogated from by agreement to the detriment of a lawful user.
Eventually, the case went up to the the Hoge Raad (Supreme Court). In first place, the Supreme Court stated that Ryanair’s flight data did not satisfy the criterion of originality in order to enjoy protection under Dutch copyright law. The judges equally denied protection under a so-called “sui generis” right in recognition of a substantial investment in either the obtaining, verification or presentation of the contents.
Against the background of these findings, the Supreme Court addressed to the CJEU the question whether a set of data which is not protected by copyright on the basis of Chapter II and also not by a sui generis right on the basis of Chapter III of the Directive 96/9/EC still may be under the regime of Articles 6, 8 and 15 of the said directive (causing the invalidity of contradictive T&Cs).
The CJEU verdict is very clear and simple. Articles 6, 8 and 15 of the Directive 96/9/EC only apply if the set of data qualifies as a database within the meaning of the Directive. Consequently, if neither copyright nor suigeneris protection exists, there is no limitation to be drawn from the Directive 96/9/EC as regards the contractual provisions governing access and use of such data. The “right of free access” to databases only applies in cases of statute-protected databases.
The underlying argument reads as follows: The general goal is to safeguard an adequate balance between the rights of the person who created the database and the rights of the lawful users. The Directive 96/9/EC thus provides a system of automatic protection with specific limitations. Where there is no such protection, there is also no need for a right of free access. This ratio is compelling. Without particular statutory protection available, the owner of a dataset must be free to implement contractual provisions aiming at protecting his economic interests. This judgment thus deserves credit.