CJEU: search engine copying of databases infringes sui generis right where it adversely affects database maker investment

The decision emphasises the importance of investment by the database maker.

The Court of Justice of the EU has issued its decision in SIA CV-Online Latvia v SIA Melons (Case C-762/19).

SIA CV-Online Latvia (CV-Online) operates a website including a database, developed and regularly updated by CV-Online, containing notices of jobs published by employers. SIA Melons, is a content aggregator and operates the website ‘KurDarbs.lv’, which is a search engine specialising in notices of employment. Job seekers can use it to search on several websites containing employment notices, using various criteria, including the type of job and the place of employment. Using hyperlinks, the website ‘KurDarbs.lv’ refers users to the websites on which the information sought was initially published, including CV-Online’s website. The meta tags inserted by CV-Online in the programming of its website are also displayed in the list of results obtained when the Melons website is used.

CV-Online brought proceedings against Melons. It argued that Melons ‘extracts’ and ‘reuses’ a substantial part of the contents of its database. The Latvian court of first instance found that there had been a breach of the right in question, because there was a ‘reutilisation’ of the database. Melons appealed, arguing that its website does not provide online transmission, that is to say, that it does not operate ‘in real time’. It also claimed that a distinction must be drawn between the website CV.lv and the database which it contained. It argued that it is the meta tags used by CV-Online that cause the information relating to the job ads to appear in the results obtained using the ‘KurDarbs.lv’ search engine and that those meta tags are not part of the database.

The Latvian court referred the following questions to the Court of Justice for a preliminary ruling:

  • Should the activities of Melon, which consist in using a hyperlink to redirect end users to the applicant’s website, where they can consult a database of job ads, be interpreted as falling within the definition of “reutilisation” in Article 7(2)(b) of [Directive 96/9], more specifically, as the reutilisation of the database by another form of transmission?
  • Should the information containing the meta tags that is shown in the search engine be interpreted as falling within the definition of “extraction” in Article 7(2)(a) of [Directive 96/9], more specifically, as the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form?’

AG opinion

Advocate General Szpunar said the CJEU should rule that a search engine's copying and indexing of an online database would amount to reutilisation and extraction of the database infringing Articles 7(1) and (2) of the Database Directive (96/9/EC) only if it had an adverse effect on the database maker's investment in obtaining, verifying or presenting the contents of the database.

Court ruling

The court ruled Article 7(1) and (2) of Directive 96/9/EC mean that an internet search engine specialising in searching the contents of databases, which copies and indexes the whole or a substantial part of a database freely accessible on the internet and then allows its users to search that database on its own website according to criteria relevant to its content, is ‘extracting’ and ‘re-utilising’ that content within the meaning of that provision, which may be prohibited by the maker of such a database where those acts adversely affect its investment in the obtaining, verification or presentation of that content, namely that they constitute a risk to the possibility of redeeming that investment through the normal operation of the database in question.  This is for the referring court to verify.

Published: 2021-06-14T13:00:00

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