This blogger has only just become aware of case number C-30/14 with which the CJEU has been seized since 22 January, as fully reported in January in the astonishingly brilliant EU Law Radar Blog here.
PR Aviation, the operators of a website wegolo.com [we go low - geddit?] run an airline comparison site. They allow users to search across multiple airlines, including Ryanair - and Ryanair, not being happy about this, sued PR Aviation. Note that this does not seem to be a case of scraping - as the Dutch lower court found an allegation of scraping not to have been proved.
The Dutch courts appear to have found that the Ryanair booking system was protected neither by copyright nor by the sui generis rights under the Database Directive but it is protected as a database under an arcane provision of the Dutch Copyright Act of 1912 which the Dutch parliament expressly legislated to survive the implementation of the Database Directive, even though it affords protection to content that is unprotectable under that Directive.
The Dutch Supreme Court then looked at the Directive and said that, even if the 1912 law was compatible with the Directive (a point about which there is considerable doubt - as even the court was willing to admit), then the rights of lawful users under Articles 6 and 8 of the Database Directive and, importantly, the prohibition on contractual override under Article 15 of the Directive as a matter of principle also apply to protect users of the databases that are not protected by the Directive. So the Dutch court's approach seems to be that the exceptions set out in the Directive apply to a broad range of databases, even beyond those which are granted IP protection by the Directive.
They therefore asked the CJEU the following question (and thanks to EU Law Radar's Stephen Vousden for the informal translation)
Does the scope of the Database Directive also cover online databases that are neither protected in copyright under Chapter II of the Directive nor protected as a sui generis right under Chapter III of the Directive and yet where the freedom to use such databases cannot be restricted in contract by dint of the (whether or not corresponding) application of Articles 6(1) and Article 8, when read together with Article 15 of the Database Directive?This Blogger would suggest the answer that (i) after SportRadar and Svensson the Court will find that the continued protection of rights that are not contemplated under the Database Directive is not compatible with the harmonisation principle of the Directive but that (ii) a Member State court should therefore not in any event deny the protection of Article 15 to a user of a database, regardless of whether that Directive is protected under the Directive, or under separate legislation incompatible with the Directive. It seems rather unlikely that the Court will rule that the proper construction of the Directive is that Article 15 applies to all databases, whether protected under the Directive or otherwise - but anything is possible.