Who: Innoweb B.V. (“Innoweb”); Wegener ICT Media B.V. and Wegener Mediaventions B.V. (“Wegener”); the Court of Justice of the European Union (“CJEU”)
When: 19 December 2013
Where: Luxembourg
Law stated as at: 30 January 2014
What happened:
The CJEU has ruled that, in certain circumstances, the use of a dedicated meta search engine which searches the databases of various other parties and displays collated results to the end user is an infringement of the database rights of those other parties through re-utilisation of the contents of the databases.
Innoweb’s engine revs Wegener into action
The claimant, Wegener, operated a Dutch website called AutoTrack which contained a collection of between 190,000 and 200,000 second-hand car adverts, updated on a daily basis. Of these, approximately 40,000 of the advertisements were found only on the AutoTrack website, the remaining adverts also being listed on other advertising websites.
Innoweb, the defendant, operated a Dutch website called GasPedaal which also provided online car advertisements. Users could search for cars based on a number of different criteria, including the make, model, mileage, year of manufacture, price, transmission type, colour.
However, whereas the AutoTrack website had its own database of adverts, the GasPedaal website used a dedicated meta search engine which scanned specific third party websites in real time, including AutoTrack, and collated all of the search results for its users. It worked in such a way that it could translate the commands entered by its users into a form which could be recognised by the various websites which it scanned and input into their search pages. The GasPedaal site then sorted the relevant hits from the various third party sites, dealt with any duplications of the same adverts which appeared from different third party sites by only showing one search result for each ad and provided links to each source from which the car advert originated.
For every search performed, the GasPedaal site only returned the ads which matched the relevant search criteria, and consequently this usually constituted a small proportion of the overall number of ads available on the third party sites.
As AutoTrack was one of the websites from which the GasPedaal search engine found its results, Wegener sued Innoweb in the Netherlands for infringement of its database rights and won. Innoweb appealed the decision, and so the Hague Court of Appeal stayed the proceedings and made a reference to the CJEU for a preliminary ruling on a few issues in the case concerning the law on database rights.
European database rights
Article 7(1) of the European Database Directive (the “Directive”) gives a party who has invested in making a database the right to prevent “extraction and/or re-utilisation of the whole or of a substantial part” of the contents of the database. The Directive states at Article 7(2)(b) that “re-utilisation” means “making available to the public of all or a substantial part of the contents of a database by the distribution of copies, by renting, by online or other forms of transmission”.
CJEU puts a handbrake on Innoweb’s operations
The CJEU’s decision concentrated on whether a substantial part of the contents of the AutoTrack database had been re-utilised by the GasPedaal meta search engine.
Firstly, the court distinguished a dedicated meta search engine from general search websites such as Google or Yahoo. Whilst the latter have their own search engine to scan other websites, the meta search engines make use of the search functionality available on other sites from which the content, in this case car adverts, is sourced.
Given that one of the the objectives of the Directive is to encourage the development of data storage and processing systems, the CJEU concluded that the party who assumes the risk in investing human, technical and financial resources in setting up and operating their own database should be afforded protection. As such, any service which, in making available to the public the contents of another party’s database, deprives the database owner of the revenue which should be the return on their investment in the database, counts as re-utilisation and therefore is not permitted.
Database owner could lose advertising income
As websites such as GasPedaal mean that the end user no longer needs to go to the website of the database owner, or to its search page, in order to see the contents of that database, there is a risk that the database maker will lose advertising income which it would otherwise have made, particularly as those placing the adverts might be more inclined to post them directly on the website of the meta search engine rather than the other websites which the meta search engine scans.
Furthermore, the CJEU acknowledged that those people placing adverts might only place them on one database at a time in the knowledge that duplicating adverts across different databases would lead to no gain given that websites such as GasPedaal filter out duplicate adverts in any event. This would lead to a decline in the overall profitability of the database sites.
The CJEU was happy that forming a dedicated meta search engine which translated user entries into a form which could search the protected databases amounted to “making available” the contents of those database for the purposes of the Directive. Furthermore, although the search results would only ever list a small proportion of contents of the various databases in line with the specific search criteria entered by the end user, the fact that the entire contents of the databases were searchable using GasPedaal’s website meant that the re-utilisation was indeed a “substantial part” of the contents of the databases concerned.
As a result of the above considerations, the CJEU held that making available a meta search engine such as that underlying the GasPedaal site is a re-utilisation of the whole or a substantial part of the content of another party’s database in situations where the meta search engine has the following characteristics:
- it provides the end user with the essentially the same search functionality as that available on the database maker’s site;
- it ‘translates’ user search criteria into a form recognisable on the database site in real time; and
- it presents the results to end users in a format which reflects the criteria on which results on the database sites can be compared.
Why this matters:
The decision is good news for those websites which have spent money and effort compiling and maintaining their own database of information, particularly where the contents of the database directly equate to revenues, such as the fee paid for an advertiser to place an ad on the database. Indeed, the decision is likely to afford protection against the interception of advertising revenues by the operator of the meta search engine.
On the other side of the coin, operators of dedicated meta search engines must now seriously consider reviewing their operations. The fact that the similarity of the search criteria was a key factor in the CJEU’s reasoning highlights that where search websites compiling results from various databases merely mirror the search functionalities present on the database websites being checked, it is very possible that they might be infringing database rights.
