By Andy Harris
Normally companies are keen to take advantage of as many of the available intellectual property protections as possible. Last week however saw a CJEU decision where Ryanair benefitted from not qualifying for either of the usual forms of database protection.
First and second class
Rights in databases are normally protected by either copyright or by a ‘sui generis’ right introduced specifically for databases in 1997.
Copyright will protect a database where it constitutes the author’s ‘intellectual creation’ and the sui generis right applies where there has been substantial investment in ‘obtaining, verifying or presenting’ the database.
Some databases may qualify for protection in both classes, but some may not qualify in either and fall into a ‘third’ class that qualifies for no IP protection.
Ryanair’s desire for third class
Ryanair were suing Dutch company, PR Aviation, because PR Aviation used information from Ryanair’s website database for its price comparison service – despite Ryanair’s terms and conditions preventing this type of commercial use without a licence from them.
It was established in the case that Ryanair’s online database of flight information did not qualify for either copyright or sui generis database protection. It therefore fell into this third class of database where no IP protection is available.
However that suited Ryanair because the legislation regarding both copyright and sui generis protected databases prevent contractual limitations being applied to those databases in certain situations. It therefore made Ryanair’s argument (that their terms and conditions prevented PR Aviation doing what they were doing) stronger if their database was not copyright or sui generis protected.
The issue which the Court of Justice of the European Union was asked to decide was effectively whether databases that fell into this third class were still subject to the same restrictions on contractual limitations as copyright and sui generis protected databases. The court held that they were not.
First class result
Well it was for Ryanair. It meant that their terms and conditions were not limited by certain legislative restrictions that would apply to the other types of databases.
It should be borne in mind however that these legislative restrictions do not mean that you cannot enforce your online database terms and conditions if that database is protected by copyright and sui generis rights. The rights that cannot be contracted out of for those types of database are as follows:
- A lawful user of a database is entitled, without the consent of the database owner, to do something that is otherwise restricted (e.g. copy, reproduce it) to the extent this is necessary to access the contents of the databases and for the normal use of its contents.
- The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever.
It is doubtful that this decision will lead to companies deliberately trying to avoid their online databases qualifying for copyright or sui generis protection. Those protections can be extremely valuable. And the rights noted above that cannot be contracted out of are not designed to interfere with exploitation of those types of databases.
However it does mean that companies that ‘scrape’ information from third party websites will need to be more careful about the type of database involved.