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17 February 2015
The information industry welcomed the entry into force of the EU Database Directive (1996/6/EC): finally, a strong legal instrument was available to control publicly accessible information. However, the Fixtures and British Horse Racing decisions of 2004, as well as the Football-Dataco decision, revealed that the threshold for protection of a database (whether sui generis or copyright) is substantially higher than was initially expected.
The recent case of Ryanair v PR Aviation concerned the collection of information that did not meet the specific requirements for database protection. The question it presents is whether the owners of such unprotected databases might in some cases be better off.
Ryanair v PR Aviation has sparked significant interest among the Dutch IP community since it first arose in 2010. Initially, the question to be answered was whether there is still room for the protection afforded under Dutch law to non-original writings ('geschriftenbescherming' ) where a database is denied database protection. On July 28 2010 the Utrecht District Court ruled that this is indeed the case. The Amsterdam Court of Appeal also denied database protection, but circumvented the thorny issue of protection for non-original writings by focusing on the prohibition in the Database Directive against contractually limiting some specific forms of use of a database (Articles 6(1) and 8(1) of the Database Directive, in combination with Article 15 of the directive), which was implemented in Dutch law through Article 24a(3) of the Copyright Act and Article 3 of the Database Act.
The court of appeal first found that Ryanair's flight data fell under the definition of a 'database'. It further found that Ryanair had made this data publicly accessible free of charge, and that PR Aviation had used this service just like other visitors to the website. PR Aviation was considered to be a lawful user of the data. According to the court of appeal, the freedom to conduct business led to the result that, in principle, PR Aviation was entitled to compete with Ryanair even by using Ryanair's data, which was not protected by the sui generis database right or copyright.
The Dutch advocate general proposed a series of questions to the European Court of Justice (ECJ) focusing on the issue of whether PR Aviation could be considered to be a lawful user making normal use of the database. However, the Dutch Supreme Court asked whether the explicit limitation of freedom of contract under the Database Directive also applies to databases that are protected by neither the sui generis right nor copyright.
The ECJ's answer is relatively short. It states that the specific contractual limitations laid down in the Database Directive in relation to lawful users of databases do not apply where a database does not qualify for protection under the directive. This raises the question of whether a database owner should seek to avoid qualifying for protection under the directive - for example, by downplaying the investments or the creative choices it has made in creating the database.
This question should be answered in the negative. As the ECJ pointed out in its decision, the protection afforded by the Database Directive covers a wide range of activities throughout Europe without requiring any administrative formalities or other prior contractual arrangements, and is therefore valuable. Further, the authorised use of protected databases can still be regulated by contract. Limitations relating to the purposes and ways of using the database are allowed, as long as the lawful user can subsequently access and use the database for those purposes and in the way set out in the agreement with the rights holder – even if such access and use necessitate the performance of otherwise restricted acts. This follows from Recital 34.
In assessing the boundaries to contractual limitations imposed by the Database Directive, a distinction should be drawn between the limitation stemming from Article 6(1) of the directive and that stemming from Article 8.
The reason why the directive explicitly states that the lawful user's right to access and use a copyrighted database cannot be limited follows from Recital 33:
"the question of exhaustion of the right of distribution does not arise in the case of on–line databases, which come within the field of provision of services; whereas this also applies with regard to a material copy of such a database made by the user of such a service with the consent of the rightholder; whereas, unlike CD–ROM or CD–i, where the intellectual property is incorporated in a material medium, namely an item of goods, every on-line service is in fact an act which will have to be subject to authorization where the copyright so provides."
In other words, Article 6 of the directive confirms that the normal use of an online database which is protected by copyright will not infringe that copyright. Article 15 of the directive subsequently states that this exception to copyright protection cannot be contractually limited for a lawful user. A similar provision can be found in Article 5(2) of the EU Software Directive. Where there is no copyright, Article 6(1) of the directive seems to be irrelevant; which makes its non-applicability where there is no copyright protection logical.
The purpose of the limitation to freedom of contract in relation to sui generis database rights laid down in Article 8(1) in combination with Article 15 of the directive is less clear, because the directive does not afford protection to non-substantial parts of a database. The directive states only that the use by a lawful user of non-substantial parts of a sui generis protected database cannot be limited by contract. One cannot infer from this provision that the use of information in a database can always be limited by contract where the database is not protected by a database right. This also does not explicitly follow from Article 13 of the directive, which states that the directive is without prejudice to contract law, among other things. The fact that the directive is without prejudice to contract law does not mean that the directive creates contract law options that were not available before the directive.
For further information on this topic please contact Martin Hemmer at AKD by telephone (+31 88 253 50 00), fax (+31 88 253 60 01) or email (email@example.com). The AKD website can be accessed at www.akd.nl.
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