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Thursday, 15 January 2015

Ryanair scrapes home in database dust-up

Case C‑30/14Ryanair Ltd v PR Aviation BV is a real quickie.  The request for a preliminary ruling from the Court of Justice of the European Union (CJEU) was only made a year ago, on 17 January 2014, -- and, spared the excitement of Advocate General Bot's Opinion, we already have the CJEU's response.

The facts are straightforward. PR ran a website on which consumers could search through the flight data of low-cost air companies, compare prices and, on payment of commission, book a flight.  It took the data it needed, in order to satisfy consumers' requests, from a dataset linked to the Ryanair website which was also accessible to consumers. So far as Ryanair was concerned, anyone accessing its own website had to accept its general terms and conditions by ticking a box to that effect. These contained the following clauses:
2. Exclusive distribution. This website and the Ryanair call centre are the exclusive distributors of Ryanair services. Ryanair.com is the only website authorised to sell Ryanair flights. Ryanair does not authorise other websites to sell its flights, whether on their own or as part of a package. …

3. Permitted use. You are not permitted to use this website other than for the following, private, non-commercial purposes: (i) viewing this website; (ii) making bookings; (iii) reviewing/changing bookings; (iv) checking arrival/departure information; (v) performing online check-in; (vi) transferring to other websites through links provided on this website; and (vii) making use of other facilities that may be provided on the website. 
The use of automated systems or software to extract data from this website or www.bookryanair.com for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison.’
Relying on Directive 96/9 (the Database Directive) and the local Dutch database and copyright statutes, Ryanair claimed that PR had infringed its rights relating to its data set and that it had acted contrary to the terms and condition of use of its website which the latter had accepted; Ryanair asked for an injunction and damages.

The Rechtbank Utrecht dismissed Ryanair’s claim in so far as it was based on an infringement of Directive 96/9 and the local Database Law, but allowed it under the copyright law. PR appealed and Ryanair cross-appealed to the Gerechtshof te Amsterdam, which both set aside the judgment of the Rechtbank Utrecht and dismissed Ryanair’s cross appeal.  Ryanair then appealed to the Hoge Raad, which decided to stay the proceedings and to refer the following question to the CJEU for a preliminary ruling:
‘Does the operation of [Directive 96/9] also extend to online databases which are not protected by copyright on the basis of Chapter II of [that directive], and also not by a sui generis right on the basis of Chapter III, in the sense that the freedom to use such databases through the (whether or not analogous) application of Article[s] 6(1) and 8 in conjunction with Article 15 [of Directive 96/9], may not be limited contractually?’
This morning the CJEU ruled as follows:
Directive 96/9 ... must be interpreted as meaning that it is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.
Does this ruling make sense? It does seem strange that the owner of a non-original database which has no copyright protection has a greater degree of contractual freedom than the owner of a database that enjoys protection under the Directive. However, one might say that the limitations on the rights of the owner of a protected database are a quid pro quo for its being protected in the first place -- not that this would be a logical justification for the outcome.

There's a thoughtful note by fellow blogger Eleonora on the IPKat weblog here, which has already attracted some comments.

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