Comment on Ryan air Ltd v PR Aviation BV

CJEU’s interpretative enterprise on copyright law issues has been inaugurated in 2015 with the decision of 15 January 2015 in the case Ryan air Ltd v PR Aviation BV (Case C‑30/14). The preliminary reference concerned a not particularly popular domain of the copyright law arsenal, the interpretation and the possible application of certain provisions of the Directive 96/9 on the legal protection of databases.

The Directive that has been strongly criticized by the doctrine and by digital rights advocates has proved to be in the 18 years of its existence an inexhaustible source of preliminary questions and subsequent CJEU’s decisions. In 2004 the Court had to answer whether and under which conditions the use of football fixtures lists infringes the database sui generis right (Judgments of the Court in Cases C-46/02, C-203/02, C-338/02 and C-444/02, The British Horseracing Board Ltd and Others v William Hill Organisation Ltd, Fixtures Marketing Ltd v Oy Veikkaus Ab, Fixtures Marketing Ltd v Svenska Spel AB, Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou (OPAP)). In 2008 the Court analyzed the application of the sui generis regime to a collection of poems created in a University (Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg, C-304/07), while in 2009 the conditions of protection of a legal information database have been examined (Apis-Hristovich EOOD v Lakorda AD, Case C‑545/07). In 2012, in Football Dataco & others v. Yahoo UK ! & (Case C-604/10), the prerequisite of originality for the award of database copyright protection for sport information databases has been scrutinized. In the case Football Dataco-v-Sportradar (C-173/11) the Court ruled on the location of database sui generis right infringement via reutilisation of sports information by another database. More recently, in 2013 the Court had to rule on another obscure aspect of the database sui generis right and more specifically on the issue of the infringement of this right by dedicated search engines (Innoweb v Wegener , Case C-202/12). In all these cases, the Court was called to shed light (and substance) to the conceptual shell of fundamental notions of the Database Directive: definition of a database, substantial investment, substantial and insubstantial part of the contents of a database, extraction and reutilization of the database contents, originality. This intensive interpretative occupation of the Court with the legal protection of databases is understandable, since the novel concepts of the Database Directive’s two-tier regime have often been a source of deep mystification for national courts.
The Ryan air Ltd v PR Aviation BV ruling has been the last stone added to the complex edifice of legal protection of databases in Europe. Even if the preliminary question appears to be located out of the perimeter of the Database Directive, the ruling is interesting for two main reasons. Under a methodological aspect, it is an illustrative example of decisions whose primary significance lies more in the recitals than in the verdict. From a doctrinal point of view, the core of the ruling lies in the affirmation of the concept of rights of the (lawful) user in European copyright law.
PR Aviation operates a website on which consumers can search through the flight data of low-cost air companies, compare prices and, on payment of commission, book a flight. It obtains the necessary data to respond to an individual query by automated means, inter alia, from a dataset linked to the Ryanair website also accessible to consumers. Access to the Ryanair’s website presupposes that the visitor to the site accepts the application of the air company’s general terms and conditions by ticking a box to that effect. According to these general terms, the information contained in the site can be used only for private and non-commercial purposes (such as for making flight bookings) and the use of automated systems or software to extract data from this website or 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. Ryanair claimed that PR Aviation had infringed copyright law and the database sui generis right and that it had acted contrary to the terms and condition of use of its website which the latter PR Aviation had accepted. After having its claims dismissed both by the Rechtbank Utrecht (Local Court, Utrecht) and the Court of Appeal of Amsterdam, Ryanair has appealed against the judgment of the Court of Appeal of Amsterdam before the Netherlands Supreme Court.
First, the Ryanair criticizes the assessment of the court of appeal, according to which the company is not entitled to the protection of written materials for the purposes of Article 10(1)(1) of the Aw (the so called “non-original writings” protection provided by Dutch law). This ground has been rejected by the referring court that took the view that no criterion other than that of originality is effective for the purposes of protection by copyright. It has to be noticed that this assessment sets Dutch copyright law in accordance with the CJEU’s appreciation on copyright law protection of databases. In the case Football Dataco & others v. Yahoo UK ! (Case C-604/10) the non –original writings” regime of Dutch copyright law, an ancestor of the database sui generis right regime, has been implicitly ruled out by the CJEU. In the second part of its ground of appeal, pleaded in the alternative, Ryanair claims, essentially, that the Court of Appeal of Amsterdam wrongly held that the fact that PR Aviation had ignored the contractual prohibition preventing it from extracting data from Ryanair’s database for commercial purposes without having concluded a written licence agreement with Ryanair did not constitute an infringement on its part.
In those circumstances, the Netherlands Supreme Court decided to stay the proceedings and to refer the following question to the Court 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?”.
The answer of the Court seems obvious. If the national court decides that the database of Ryan air is not protected under the terms of the Database Directive either by copyright or by the sui generis right, the provisions of the Directive are not applicable to it. As a result, the provisions of articles 6(1), 8 and 15 of the Directive 96/9 which safeguard the effective application of certain Database Directive’s exceptions for the benefit of the lawful users of databases shall not apply too. So, the author of such a database is not precluded from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law. In other words, if the Database Directive regime does not apply, a database author or the database producer can use the legal instrument of contract to design and impose the limits of use of the database. In the frame of this contractual delimitation, contractual freedom prevails and there is no place for the ius cogens of articles 6 (1) and 8 of the Database Directive. The author or producer of the database is not obliged to safeguard a minimum of free uses of the database contents in favor of the database’s users, such as the possibility of the lawful user to extract and reuse insubstantial part of the database’s contents for whatever reason, even for commercial purposes.
Certainly, the contractual method of the delimitation of use of information has its own inherent limits. The principle of privity of the contract precludes the imposition of the pacta to third parties. So, in case the information extracted from the contractually protected database is further made available to the Internet by third parties who have taken this information from the first extractor‘s site, the database author/producer cannot bring a claim for breach of contract against them. The conclusion of a contract of use between the author/producer of the database and the database’s user is not disputed in the case. Every user of the air company’s web site had to tick a box to comply with the general terms of use of the site. So, ticking the box was the demonstration of an express acceptance of the contract’s terms. But, even if no ticking a box was required, the contract could have still been concluded on the grounds that the sole use of a website implies the acceptance of the general terms of its use under the substantial condition that the terms of use have been properly notified to the user when accessing the website.
Another conundrum of the contractual route is the evidence of breach of the contractual terms. In case of unauthorized uses of the database contents by various third parties, how the proof of the origin of the data will be established especially when the contract of use of data was not concluded by ticking a box? The database author/producer will have to prove that the data contained in third party sites came from his database, while every “innocent” third party shall be able to prove that the data were extracted from other secondary sources which provide unconditional access to this information. For databases protected by sui generis right this burden has been partially alleviated by the affirmation of a proprietary approach over database sui generis protection. In the BHB case (The British Horeseracing Board Ltd and others v The William Hill organization Ltd, Case C-203/02), the referring court asked, inter alia, whether the protection conferred by the sui generis right also covers the use of data which, although derived originally from a protected database, were obtained by the user from sources other than that database. According to one of the arguments of the defendant William Hill, database infringement occurs only the contents are acquired directly from the database. The Court expressly rejected that argument and held that the concepts of extraction and reutilisation do not imply a direct access to the database concerned. Even if the data are extracted from a copy of the database or from another source and not by the original database, infringement still occurs.
And, what if all or certain of these subsequent users of the data also impose their own contractual terms of use? There is a risk that the use of information is regulated by a chain of complex and contractual limitations. But, this is how the contractual protection of information works. The contract is the last and weak legal resort of database producers when the database sui generis right does not apply. And this will often be the case when the production of the database appears to be a sub-product of another activity of a database producer whose main investments regard his main economic activity and do not directly concern the creation of the database. Indeed, The Court of Justice in 2004 precluded that the investments made for the production of the database’s contents (in our case the information about flights and bookings) count for the award of the database sui generis right. So, with this IP internal solution information that happens to be a kind of “essential facilities” for a certain information market is preventively precluded from being monopolized.
Nonetheless, since the sui generis right does not apply, the rights of the lawful user do not apply too. But, which rights we are talking about? Does copyright law recognize apart from copyright exceptions certain “user rights”? A few years ago even posing such a question was deemed heretic. As a principle the answer is negative, since the author centered continental European tradition of copyright law precludes the recognition of copyright exceptions as user rights. Nonetheless, the concepts of lawful user and of the rights of the lawful user were introduced by the Software Directive and the Database Directive. The introduction of the concept of lawful user in these two Directives marked a new perception of the delimitation of the copyright monopoly. For a first time in copyright law, the law refers to a determinate beneficiary of certain legal prerogatives (“the lawful user”), instead of the vague concept of the public. Another innovation of both Directives has been the declaration of some exceptions as mandatory. The proclamation of certain exceptions as obligatory has as specific significance in determining their legal nature. Indeed, mandatory copyright exceptions that cannot be overridden by contractual terms marks the advent of a more robust approach on copyright exceptions and brings closer the “legal prerogatives” safeguarded by the exceptions to the legal nature of “rights”.
The consecration of the existence of these rights is in our opinion the major contribution of this ruling. According to recital 39 of the ruling, “ is clear from the purpose and structure of Directive 96/9 that Articles 6(1), 8 and 15 thereof, which establish mandatory rights for lawful users of databases, are not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that it does not prevent the adoption of contractual clauses concerning the conditions of use of such a database”. The Court is more explicit in recital 40 where it is stated that “That analysis is supported by the general scheme of Directive 96/9. As Ryanair and the European Commission have stated, that directive sets out to achieve a balance between the rights of the person who created a database and the rights of lawful users of such a database, that is third parties authorized by that person to use the database….”. Certainly, the recognition of such rights remains marginal, since it concerns only specific cases (computer programs and databases) and not copyright exceptions in general, which shall be interpreted strictly according to the established case law of the CJEU (See: ACI Adam BV and Others v Stichting de Thuiskopie Stichting Onderhandelingen Thuiskopie vergoeding ruling, Case C‑435/12). But, it shall not be ignored. It is a fundamental doctrinal shift and a precursor of a new perspective of the position of users in copyright law that has to be further explored.