In a preliminary ruling of 19 December 2013 (case C-202/12), the ECJ confirmed that a dedicated metasearch engine searching the contents of other databases may infringe the database right of the rightholder of those databases. Unlike search engines like Google, a metasearch engine is a tool that uses search engines from other websites, sending its users’ search queries to those other search engines.

In this featured case, the metasearch engine, www.gaspedaal. nl (“Gaspedaal”), which is dedicated to car sales, had used the search engine of another website, (“Autotrack”). Gaspedaal allowed its users to search based on car brands, car model, mileage, and so forth. The results generated by Autotrack, along with the results from other websites, were then merged together and presented to Gaspedaal’s users as one item that contained links to all the sources. Gaspedaal carried  out approximately 100 000 searches a day on the Autotrack website. However, in response to each search query, only a small part of the contents of the Autotrack website was displayed on Gaspedaal. Autotrack considered this to be an infringement of its database right and sought to obtain from the court an injunction against Gaspedaal. The EU Directive 96/9 on the legal protection of databases (“Database Directive”) states that the maker of a database who shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification, or presentation of the contents has a 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.

In its decision, the ECJ stresses the broad meaning of the concept “re-utilisation” in light of the Directive’s objective to stimulate the establishment of data storage and processing systems which contribute to the development of an information market.

The ECJ also points out that the end user no longer has any need to go to Autotrack’s database since the metasearch engine offers the same search functionalities, and the user can consult the database in real time through the dedicated metasearch engine. This creates a risk for Autotrack to lose income (mainly from advertising), thereby also depriving Autotrack of the revenue that should enable it to redeem the investment cost of setting up and running the database.

According to the ECJ, Gaspedaal, by making available a dedicated metasearch engine such as the one at issue, is indeed re-utilising contents of the Autotrack database. Moreover, the ECJ also finds that the re-utilisation involves substantial parts of the database, merely because the metasearch engine such as Gaspedaal makes it possible to search the entire contents of the Autotrack database. The ECJ therefore concludes that the fact that Gaspedaal (i) provides its end user with a search form which essentially offers the same functionality as the search form on the database website; (ii) translates end users’ search queries into the search engine for the database website in real time so that all the information on that database is searched through; and (iii) presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database  website  concerned  for  presenting  the  search results, means that Gaspedaal re-utilises the whole or a substantial part of the contents of the Autotrack database as protected by the Directive. Autotrack therefore has the right to prevent Gaspedaal’s re-utilization of its database.

The decision can be found on: