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16 January 2015Copyright

CJEU sets out contractual rules for database use

Europe’s highest court has ruled that website operators can limit other businesses from taking information from their sites, only if that information cannot be protected by copyright or sui generis rights.

The preliminary ruling on Thursday (January 15) from the Court of Justice of the European Union (CJEU) means that price comparison websites, and other similar businesses, could be affected.

The CJEU was ruling on a four-year dispute between budget airline Ryanair and Netherlands-based price comparison website PR Aviation.

PR Aviation used an automated system to take information on flights from Ryanair’s website before charging consumers for booking through its site.

Ryanair sued PR Aviation in the Netherlands, claiming it had acted in breach of the airline’s website’s terms and conditions by sharing the information.

It also sued PR Aviation for infringing its copyright and sui generis rights covering the data on its site, but after the case was dismissed by a court in Utrecht, the Court of Appeal in Amsterdam confirmed in 2012 that PR Aviation had acted lawfully.

Ryanair appealed to the Dutch Supreme Court (Hoge Raad der Nederlanden), which referred a question to the CJEU: “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?”

By its question, said the CJEU, the Dutch court was asking whether the EU directive 96/9, which covers the protection of databases, means that the freedom to use such a database cannot be contractually limited.

The question was based on the premise that Ryanair’s data at issue does constitute a database.

In its judgment, the CJEU said that directive 96/9 must mean that it is not applicable to a database that is not protected either by copyright or sui generis rights under that directive, meaning the directive does not preclude a database author from laying down contractual limitations on its use by third parties. But that is only if the terms of the contract do not prejudice national laws.

The CJEU wrote: “If the author of a database protected by directive 96/9 decides to authorise the use of its database or a copy thereof, he has the option … to regulate that use by an agreement concluded with a lawful user which sets out … the ‘purposes and the way’ of using that database or a copy thereof.”

A preliminary judgment is not binding and the case will now return to the Dutch Supreme Court.

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