In a landmark decision, the EU Court of Justice held that the mere offering of a dedicated meta search engine infringes database rights since it constitutes “re-utilising” of the “whole or a substantial part” of a database. Accordingly, in proceedings against providers of dedicated search engines, proof of the actual extent of the use is not required, strengthening the position of database right holders. Providers of similar meta search engines may now have to evaluate the nature and extent of the technology used in their search engines and determine whether licences for use of certain databases are required.
The case referred to the EU Court of Justice (ECJ) concerned a dispute between Wegener and Innoweb about the use of a dedicated meta search engine. This is a specific type of search engine which (i) uses search engines from other websites transferring queries from its users to those other search engines, and (ii) is designed (“dedicated”) to allow searches in one or more specific subject areas. Innoweb had offered a dedicated meta search engine, through its website www.gaspedaal.nl, which allowed its visitors to simultaneously search through several collections of car ads listed on third-party sites, including Wegener’s website: www.autotrack.nl. Specifically, the visitors of gaspedaal.nl could search through the database of Autotrack in ‘real time’: i.e., at the time of entry of the query, based on specific criteria such as the model and mileage of the cars. The Court of Appeal of The Hague asked the ECJ whether Innoweb’s acts constituted “re-utilisation” of the “whole or of a substantial part” of the contents Wegener’s database.
The ECJ’s ruling
The ECJ emphasised that in answering this question, one needs to take into account the essential features of a dedicated meta search engine (setting it apart from search engines such as Google which are based on algorithms) and assess the actual actions of the operator of this specific search engine: i.e., making the search engine available on the internet. These actions occur prior to the activities carried out by the end users, namely the actual searching of the databases. Further, in line with its previous decisions, the ECJ held that the concept of “re-utilisation should be construed broadly. Accordingly, the concept of re-utilisation covers any unauthorised act of distribution to the public of the contents of a protected database or of a substantial part of a database. Taking into account that the acts at issue – according to the ECJ as approximating the manufacture of a parasitical competing product – may lead to a loss of income for the maker of the database, such as loss of income from advertising, the ECJ ruled that the offering of a dedicated meta search engine as the one at issue constitutes “re-utilising”.
The ECJ further held that the acts at issue constitute the re-utilising of the “whole or a substantial part” of the content of a database since dedicated meta search engines like Gaspedaal now make it possible to search the entire contents of a database similar to a query entered directly in that database’s serch engine. The fact that only part of the entire database is actually consulted was held irrelevant as the entire database is in fact made available to the end user.
Providers of similar meta search engines may now have to evaluate the nature and extent of the technology used in their search engines and determine whether licences for use of certain databases are required.