The matter at hand
PR Aviation operates a comparison website on which consumers can compare prices of flights offered online by low-cost air companies, and can – subsequently – book a flight. In order to fulfil individual queries PR Aviation obtains the necessary data, inter alia, from the Ryanair website. In order to perform a search and access the data on this website, visitors are required to accept Ryanair’s general terms and conditions (by ticking a box to that effect) which contain a clause prohibiting use of the website for commercial purposes. Ryanair claimed that PR Aviation had infringed its copyrights and database rights and that it had acted contrary to the terms and conditions governing the use of its website.
With regard to the sui generis database right the Court of Appeal held that Ryanair did not establish the existence of ‘substantial investment’ within the meaning of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases and denied database protection. With regard to copyright, Ryanair solely relied on geschriftenbescherming (copyright protection for non-original writings) claiming that the individual records in the flight database were protected. The Court of Appeal held that it was not obliged to establish whether such rights subsisted in Ryanair’s database records, because PR Aviation could successfully invoke the copyright exception of Article 24a(1) of the Netherlands Copyright Act (an implementation of Article 6 and 15 of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases) which enables a legitimate user to make normal use of a database. The Court of Appeal held that PR Aviation’s conduct corresponded to such normal and legitimate use of the Ryanair website. It added that Article 15 of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases provides that the rights of the ‘lawful user’ to make ‘normal use’ of a database are of mandatory law, and that the prohibition in Ryanair’s terms and conditions was therefore null and void.
Ryanair has appealed against this judgment before the Netherlands Supreme Court, claiming, inter alia, that the Court of Appeal wrongly applied Article 24a of the Netherlands Copyright Act and wrongly held that this exception could be invoked. According to Ryanair the actions of PR Avation were in breach of geschriftenrecht and of the terms and conditions on the website. In a landmark decision in Netherlands copyright law, the Supreme Court held, with reference to Football Dataco (C-604/10), that the concept of copyright protection for non-original writings, in existence since 1912, was contrary to the harmonised concept of what constitutes a copyrightable work.
The Supreme Court then reached the conclusion that the Ryanair database was neither protected by copyright law, nor by sui generis database law. Not being sure whether it could apply the regulations stemming from the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases with regard to databases that are not protected by the sui generis right, the Supreme Court asked “whether the scope of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases covers databases which are not protected either under Chapter II thereof by copyright or under Chapter III by the sui generis right and, if, therefore, the limits on contractual freedom which result from Articles 6(1), 8 and 15 of that directive also apply to such databases” (paragraph 27 of the ECJ judgment).
The judgment of the ECJ
The ECJ establishes that “it is clear from the purpose and structure of the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases 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” (paragraph 39).
The ECJ continues by explaining: “That being the case, if the author of a database protected by the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases decides to authorise the use of its database or a copy thereof, he has the option, as confirmed by recital 34 in the preamble to that directive, to regulate that use by an agreement concluded with a lawful user which sets out, in compliance with the provisions of that directive, the ‘purposes and the way’ of using that database or a copy thereof. (paragraph 43) However, as regards a database to which the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases is not applicable, its author is not eligible for the system of legal protection instituted by that directive, so that he may claim protection for his database only on the basis of the applicable national law” (paragraph 44).
As a result, the ECJ concludes that the Database DirectiveDirective 96/9/EC of the European Parliament and of the Council of 11 March 2996 on the legal protection of databases “must be interpreted as meaning that it is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law” (paragraph 45).