the matter at hand

CV-Online Latvia operates a website that includes a database developed and updated by CV-Online, containing job advertisements published by employers. CV-Online makes use of metatags. Each vacancy in the database contains a number of keywords, on the basis of which internet search engines can better identify the content of each page in order to index it correctly.

Melons operates an online search engine specialising in job advertisements. Users are referred by means of hyperlinks to the internet pages on which the information sought was originally published, including CV-Online’s website. The information contained in the meta tags inserted by CV-Online in the programming of its website is also displayed in the list of results obtained when using the specialised search engine of Melons.

CV-Online brought an action instance before the Rīgas apgabaltiesas Civillietu tiesas kolēģija (Regional Court, Riga (Civil Law Division), Latvia) against Melons, taking the view that there is a breach of its sui generis right under Article 7 of Directive 96/9, as Melons ‘extracted’ and ‘re-utilised’ a substantial part of the contents of its database. The Rīgas apgabaltiesas Civillietu tiesas kolēģija (Regional Court, Riga (Civil Law Division)), the referring court, refers two questions to the ECJ for a preliminary ruling. The referring court asks in essence, whether Article 7(1) and (2) of Directive 96/9 must be interpreted as meaning 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’ the content of that database within the meaning of that provision, and that the maker of such a database is entitled to prohibit such extraction or re-utilisation of that same database.

the judgment of the ecj

First the ECJ refers to relevant case law by stating that the investment in the obtaining of the contents of a database concerns the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. Furthermore the concept of an investment in the verification of the contents of a database “must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation” (The British Horseracing Board and Others, C‑203/02). Lastly, investment in the presentation of the contents of the database includes “the means of giving that database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility” (Fixtures Marketing, C‑338/02).

The specialised search engine of Melons regularly indexes job advertising sites and stores a copy of that index on its own servers. Users can then, using this search engine's own search form, perform searches based on the criteria it suggests, searching the indexed data. The search engine of Melons makes it possible to search simultaneously the entire contents of several databases, including that of CV-Online, by a means other than that envisaged by the maker of the database in question, by making those contents available to its own users. Furthermore, by indexing the contents of the websites and copying them to its own server, that search engine transfers the contents of the databases that comprise those websites to another medium.

The ECJ held that such transfer and making available constitutes extraction and re-utilisation of those databases, prohibited by Article 7(1) of Directive 96/9, provided that they have the effect of depriving that person of income intended to enable him or her to redeem the cost of that investment. Provision of hyperlinks to the advertisements on CV-Online’s website and the reproduction of the information in the meta tags on that site are merely external manifestations, of secondary importance, of that extraction and that re-utilisation. It remains to be ascertained, therefore, whether the transfer and making available of the content may damage the investment made by the maker of the database.

The ECJ cites its earlier judgments, The British Horseracing Board and Innoweb, and continues: “In that regard, it is necessary to strike a fair balance between, on the one hand, the legitimate interest of the makers of databases in being able to redeem their substantial investment and, on the other hand, that of users and competitors of those makers in having access to the information contained in those databases and the possibility of creating innovative products based on that information” (paragraph 41).

The ECJ discusses the activities of content aggregators on the internet, stating that they contribute to the development of the information market. “By offering their users a unified interface enabling them to search several databases according to criteria relevant to their content, they allow the information on the Internet to be better structured and to be searched more efficiently. They also contribute to the smooth functioning of competition and to the transparency of offers and prices” (paragraph 42).

Sui generis protection is reserved for databases of which the creation or operation requires a qualitatively or quantitatively substantial investment. Consequently, “the main criterion for balancing the legitimate interests at stake must be the potential risk to the substantial investment of the maker of the database concerned, namely the risk that that investment may not be redeemed” (paragraph 44).

The referring court should in the end rule on the right to prohibit the extraction or re-utilisation of the whole or a substantial part of the contents of the database. It should first look at the obtaining, verification or presentation of the contents of the database and ascertain whether this attests to a substantial investment, and next whether the extraction or re-utilisation thereof constitutes a risk to the possibility of redeeming that investment.

The ECJ then rules as follows: "article 7(1) and (2) of Directive 96/9/EC on the legal protection of databases must be interpreted as meaning 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, which it is for the referring court to verify.”