CJEU case on 'screen-scraping' has potential to affect business models, says expert

On Wednesday this week, the Court of Justice of the EU (CJEU) is due to hear arguments from Ryanair and a Dutch price comparison business about the extent to which rules contained in the EU's Database Directive apply to data that is not protected by copyright or a 'sui generis' database right.

The CJEU's judgment on the matter, which is unlikely to be issued for many months, will determine the extent to which businesses can apply contractual restrictions, in the absence of having copyright or database rights protection for their data, to prevent others from using that data. Screen scraping involves the use of software to automatically collect information from websites and systems.

Intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said the CJEU's judgment in the case could have a direct impact on some companies' business models.

"The issue of the legality of screen scraping is of huge interest to many industries which use the internet as their primary sales channel," Connor said. "The ability to stop a competitor, intermediary and/or any other commercial organisation using the information a company posts on its website, is fundamental to the operation of the internet. If this can be stopped by intellectual property rights or website terms and conditions, a number of businesses, for example comparison websites, will have to change their business models."

The 'sui generis' database right was created by EU law makers in order to encourage the development of database-dependent digital systems. Copyright law alone cannot offer protection to database creators where the database contains facts, as only the expression of facts and not the facts themselves can be copyrighted.

Not every set of data can be protected by database rights, however. Only if database creators have invested sufficient time, money and skill into developing their database will those creations be protected by database rights. Those with database rights can generally "prevent extraction and/or re-utilization of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database", according to the Database Directive.

However, under the Directive there are limited exceptions to the right of database creators to restrict the use of their database by others.

According to Article 6 of the Directive, where databases are protected by copyright, database owners cannot prevent a lawful user of that database from making a copy of the database where it is necessary for the lawful user to do so to access the database contents. Similarly, in those circumstances lawful users are permitted to make "normal use of the contents" of copyright-protected databases without requiring permission from the rights holder.

Article 8 of the Database Directive also prevents database creators from preventing lawful users of a database from "extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever" where the database had been made publically available.

Lawful users of the database, however, are prohibited from using publically available databases in ways "which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database" or from causing "prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database".

If database creators use contract terms to prevent lawful users of databases from exercising their rights under Article 6 or 8 of the Directive then those contractual provisions are to be deemed "null and void", according to the Directive.

The CJEU has been asked, however, to determine whether owners of online databases that neither qualify for database rights or copyright protection can use contractual restrictions to prevent the copying or use of their databases by those who can access them lawfully.

The question has been posed to the CJEU by a court in the Netherlands which will consider the answer when determining the outcome of a legal dispute between airline Ryanair and PR Aviation, a Dutch price comparison business.

According to the CJEU, PR Aviation used "an automated system to extract flight information directly from Ryanair’s online and publically accessible database, and then charged consumers a commission for booking through its website".

Ryanair has argued that its terms and conditions prevented PR Aviation from undertaking that activity. To gain access to the flight information, PR Aviation had to agree to Ryanair's terms and conditions which "prohibited the use of an automated system to extract data from the website for commercial purposes, unless expressly agreed to by the airline", according to a summary of the case by the CJEU.

The Dutch courts have already determined that Ryanair's database of flight information is not protected by copyright or the sui generis database right.

However, the Supreme Court in the Netherlands has asked the CJEU to determine whether "the scope of the Database Directive to place limitations on the freedom of contract extends to databases not protected by copyright or sui generis right, in order to determine whether or not PR Aviation is guilty of non-performance with regard to Ryanair’s terms and conditions", the CJEU said.