Lucy Kilshaw , Susan Barty and Fionnuala Dorrity look at the recent judgment of the Court of Justice of the European Union in Innoweb v Wegener
The CJEU has recently considered whether a meta search engine which searched a number of car sales web sites to compile a consolidated list of results infringed database rights subsisting in the third-party web sites. The case of Innoweb B.V. v Wegener ICT Media B.V., Wegener Mediaventions B.V. was referred to the CJEU by a court in the Netherlands in 2012.
Wegener operates a web site containing adverts for second-hand cars ('AutoTrack'). Innoweb operates a different web site containing a meta search engine dedicated to car sales ('GasPedaal'). A meta search engine differs from general search engines such as Google, as it does not have its own search engine to scan other web sites. Instead, it uses the search engines that already exist on other web sites, by transferring the queries entered by its users to those other search engines. This means that a user can simultaneously search the car adverts listed on a number of third-party sites simply by entering a single query on Gas Pedaal.
One of the search engines used by the meta search engine on the Gas Pedaal site was that of the AutoTrack web site. The results from the AutoTrack web site are merged with the results from the other third-party sites and shown to the user on the Gas Pedaal site. Gas Pedaal carried out approximately 100,000 searches on the AutoTrack web site daily. Although around 80% of the listings on the AutoTrack web site were searched by Gas Pedaal every day, only a small part of the listings is shown to the user via the Gas Pedaal site (ie only the results relevant to each search).
Wegener brought an action against Innoweb claiming that the Gas Pedaal site infringed Wegener's database right, and succeeded at first instance. Innoweb appealed against this decision before the Regional Court of Appeal in the Hague, who referred a number of questions to the CJEU for a preliminary ruling. The questions focused mainly on the interpretation of Article 7(1) and (5) of the Database Directive, as detailed below.
Database right was created by Directive 96/9/EC on the legal protection of databases (the 'Database Directive'). Under Article 7(1) of the Database Directive, the maker of a database can prevent extraction or re-utilisation of the whole or of a substantial part of the content of the database. The repeated and systematic extraction or re-utilisation of insubstantial parts of the database is also prohibited under Article 7(5).
The protection offered by Article 7 is reserved for those databases where there has been a substantial investment in either the obtaining, verification or presentation of the contents of the database. The CJEU did not analyse this requirement in detail, proceeding instead on the assumption that the AutoTrack database satisfied this condition.
The main question for the CJEU to determine was whether the activity of Innoweb, as operator of the meta search engine, infringed the rights afforded to Wegener under Articles 7(1) and (5) of the Database Directive.
The CJEU held that the operator of a meta search engine of this nature did re-utilise the whole or a substantial part of the contents of a database. However, this decision was limited to situations where that dedicated meta search engine:
In considering whether the operation of the meta search engine amounted to the re-utilisation of the database, the CJEU stated that the concept of 're-utilisation' should be interpreted as referring to 'any act of making available to the public, without the consent of the database maker, the results of his investment, thus depriving him of revenue which should have enabled him to redeem the cost of the investment'. The CJEU reiterated the purpose of the database right, which is to ensure that someone who has taken the initiative to set up and operate a database and assumed the risk of a substantial investment into that database, be it human, technical or financial resources, should be protected from the unauthorised use of the result of that investment.
The CJEU held that the operator of the meta search engine, in these circumstances, re-utilised part of the contents of the database. Innoweb's activity in making the meta search engine available online provided end-users with a route to the information in the AutoTrack database which was different to that intended by the database maker. The Court also stated that it came close to creating a parasitical competing product, as referred to in recital 42 of the Database Directive, although without copying the information in the database.
An important factor in the CJEU's decision was the fact that the end-user, when presented with the combined list of results from several web sites, would not necessarily need to click through to the original database web site, as some information on particular cars was included in the results. As many web sites are reliant on advertising revenues determined by the number of hits received, this decrease in traffic creates a risk that the database maker will lose income.
Although in order to obtain full information on a particular car, rather than just an extract, the user would have to follow the link to the original page, the CJEU did not consider that this was sufficient to negate the risk of a loss of revenue. This was in part due to the way duplications were handled by the meta search engine. If a result were presented by a number of databases, the search engine would group all duplications together, meaning that the user, should he or she wish to find out more information about the car, may be directed to a different database site altogether.
In considering whether a substantial part of the database had been re-utilised, the CJEU acknowledged that only a small number of results may be shown, but, nevertheless, the meta search engine was able to search the entire contents of the database as though the query had been entered directly into the database itself. The number of results displayed was therefore irrelevant and the CJEU held that a substantial part of the database was re-utilised.
Having established that the actions of the meta search engine operator infringed the protection offered under Article 7(1), the CJEU did not go on to consider the additional questions referred by the Dutch court in relation to Article 7(5).
A key factor in the CJEU's decision was the risk that the use of the database by the meta search engine could deprive the database maker of revenue, and as such the decision that the meta search engine infringed the database right in the AutoTrack database is perhaps unsurprising. The rationale behind the database right is to protect the database maker's substantial investment in setting up the database.
Meta search engines are popular across a number of sectors and operators of such sites should consider whether their actions amount to infringement in light of this decision. If the database web site contains appropriate terms and conditions, the database maker could also have grounds for a breach of contract claim. It may be necessary to negotiate a licence from the database maker and a licence fee may be payable.
However, and importantly, the CJEU limited their decision in this case to the specific type of meta search engines referred to in these proceedings, including the way the search engine handles duplicate results. The application of this decision may therefore be limited.
Further guidance is still needed on the repeated and systematic type of infringement contemplated by Article 7(5), the interpretation of which remains unclear.
Lucy Kilshaw is of Counsel and works in the Technology and Litigation Group at CMS Cameron McKenna LLP.
Susan Barty is a partner within the Commercial Department at CMS Cameron McKenna LLP.
Fionnuala Dorrity is an Associate at CMS Cameron McKenna LLP.