Stepping on the GasPedaal: CJEU rules on re-utilisation of car-ad database

The sui generis database right is one of Europe's forgotten rights. One can go weeks without thinking about it, months without having to answer any questions about it and years without having to read any cases on it.  But every so often something crops up. One such 'something' is Case C‑202/12, Innoweb BV v Wegener ICT Media BV, Wegener Mediaventions BV, a ruling from the Fifth Chamber of the Court of Justice of the European Union (CJEU) last Thursday, following a request for a preliminary ruling by the Gerechtshof te ‘s‑Gravenhage (The Hague Regional Court [amended text: of Appeal], The Netherlands).

Through its Auto Track website www.autotrack.nl, Dutch company Wegener provided access to an online collection of advertisements for cars, together with a list, updated daily, of 190,000 to 200,000 second-hand cars [Merpel wonders who might buy them, since in her experience the Dutch are firmly wedded to their bicycles]. Approximately 40,000 of those advertisements were found only on autotrack.nl, while the others advertisements might be found elsewhere too. With the help of the website's search engine, users could carry out a targeted search for the vehicle of their dreams, based on their specified criteria.

But Auto Track was not alone.  Another company, Innoweb ran GasPedaal, a meta search engine via its www.gaspedaal.nl website, and this too was dedicated to car sales. As the CJEU explained, a meta search engine uses search engines from other websites, transferring queries from its users to those other search engines [ie a search engine that also searches through other search engines, says Merpel] – a feature which differentiates meta search engines from general search engines such as Google.  Accordingly, a car search using GasPedaal enabled the user simultaneously to carry out searches of several collections of car advertisements listed on third party sites, including AutoTrack.

New, with Katalytic converter

The long and the short of this is that the total number of advertisements on websites searched through GasPedaal was around 300,000.  GasPedaal daily carried out around 100,000 searches on the AutoTrack website, subjecting approximately 80% of the various combinations of makes or models listed in the AutoTrack collection to search daily. In response to each query, however, GasPedaal displayed only a very small part of the contents of that collection, the contents of that data being determined by the user on the basis of the criteria which were keyed into GasPedaal.

One might have thought that Wegener would be really happy with this, since users of GasPedaal would be more likely to respond positively to Auto Track ads if GasPedaal searched autotrack.nl than if it didn't.  But this was not the case.  Considering that Innoweb was compromise its sui generis right in relation to its database of car adverts, Wegener brought an action for injunctive relief to protect its database right and, at first instance, succeeded in all essential respects. Innoweb appealed to the Gerechtshof te ‘s‑Gravenhage.

They don't make car ads
like they used to ...

The court was happy to accept that Wegener's collection of car ads was a database, but didn't think this was a situation in which the whole or a substantial part of that database was extracted [the IPKat reminds readers that merely using a database isn't an infringing act, but extracting the data, in whole or part, is]. Nor did the repeated extraction of insubstantial parts of the contents of that database have a cumulative effect [in other words, 0 + 0 + 0 + 0 = 0].  Accordingly, said the court, Innoweb's activity did not constitute an infringement of Article 7(5) of Directive 96/9 on the protection of databases. However, to be on the safe side, the court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is Article 7(1) of Directive [96/9] to be interpreted as meaning that the whole or a qualitatively or quantitatively substantial part of the contents of a database offered on a website (on line) is re-utilised (made available) by a third party if that third party makes it possible for the public to search the whole contents of the database or a substantial part thereof in real time with the aid of a dedicated meta search engine provided by that third party, by means of a query entered by a user in “translated” form into the search engine of the website on which the database is offered?

(2) If not, is the situation different if, after receiving the results of the query, the third party sends to or displays for each user a very small part of the contents of the database in the format of his own website?

(3) Is it relevant to the answers to Questions 1 and 2 that the third party undertakes those activities continuously and, with the aid of its search engine, responds daily to a total of 100 000 queries received from users in “translated” form and makes available the results thereof to various users in a manner such as that described above?

(4) Is Article 7(5) of Directive [96/9] to be interpreted as meaning that the repeated and systematic re-utilisation of insubstantial parts of the contents of the database which conflicts with normal exploitation or unreasonably harms the legitimate interests of the database maker is not permissible, or is it sufficient for there to be repeated or systematic re-utilisation?

(5) If repeated and systematic re-utilisation is a requirement,

(a) what does “systematic” mean?

(b) is re-utilisation systematic when an automated system is used?

(c) is it relevant that a dedicated meta search engine is used in the manner described above?

(6) Is Article 7(5) of Directive [96/9] to be interpreted as meaning that the prohibition laid down thereunder does not apply if a third party repeatedly makes available to individual users of a meta search engine belonging to that third party only insubstantial parts of the contents of the database in response to each query?

(7) If so, does that also apply if the cumulative effect of the repeated re-utilisation of those insubstantial parts is that a substantial part of the contents of the database is made available to the individual users together?

(8) Is Article 7(5) of Directive [96/9] to be interpreted as meaning that, if conduct which has not been approved and which is such that, as a result of the cumulative effect of re-utilisation, the whole or a substantial part of the contents of a protected database is made available to the public, the requirements of that provision are satisfied, or must it also be claimed and proved that those acts conflict with the normal exploitation of the database or unreasonably harm the legitimate interests of the database maker?

(9) Is it assumed that the investment of the database maker is seriously harmed in the event of the aforementioned conduct?’

The CJEU ruled last week as follows:

Article 7(1) ... must be interpreted as meaning that an operator who makes available on the internet a dedicated meta search engine such as that at issue in the main proceedings re-utilises the whole or a substantial part of the contents of [ie infringes] a database protected under Article 7, where that dedicated meta engine:

– [i] provides the end user with a search form which essentially offers the same range of functionality as the search form on the database site [even though it is the end user who uses the search form, not the party providing the form];

– [ii] ‘translates’ queries from end users into the search engine for the database site ‘in real time’, so that all the information on that database is searched through; and

– [iii] presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database site concerned for presenting results [this is an unusually precise and fact-specific criterion which web-scrapers will no doubt look at carefully, asking themselves how literally this verbal formula can be taken and what exactly "criteria comparable to those used by the search engine" means].

Says the IPKat, the heart of the CJEU's ruling appears to be beating in time to the court's perception of policy. As stated in paras [33] to [38]:

33 The use, in Article 7(2)(b) of Directive 96/9, of the phrase ‘any form of making available to the public’ indicates that the Community legislature attributed a broad meaning to ‘re-utilisation’ ...

34 That broad construction of the concept of ‘re-utilisation’ is lent support by the objective pursued by the Community legislature through the establishment of a sui generis right ...

35 As the Court has already held..., that objective is to stimulate the establishment of data storage and processing systems which contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity ...

36 To that end, the protection offered by the sui generis right under Directive 96/9 is intended to ensure that the person who has taken the initiative and assumed the risk of making a substantial investment in terms of human, technical and/or financial resources in the setting up and operation of a database receives a return on his investment by protecting him against the unauthorised appropriation of the results of that investment ...

37 In the light of that purpose, the concept of ‘re-utilisation’ as used in Article 7 of Directive 96/9 must be construed 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 .... ‘Re-utilisation’ accordingly refers to any unauthorised act of distribution to the public of the contents of a protected database or a substantial part of such contents ... The nature and form of the process used are of no relevance in this respect ...

38 The second part of the definition given in Article 7(2)(b) of Directive 96/9 – ‘by the distribution of copies, by renting, by on-line or other forms of transmission’ – and, in particular, the alternative ‘or other forms’ also make it possible to construe that definition broadly, by reference to the objective of Article 7 ...

This Kat feels that there's something missing in this sequence of propositions, and he wonders whether the notion of Wegener suffering loss through the reduced number of visits to its website -- where other advertising revenue might be earned -- is the sort of loss that was contemplated by the drafters of the Database Directive back in the mid-1990s.

Merpel says, Innoweb's business model looks a lot cooler than Wegener's and is surely much better for consumers.  Why isn't the law encouraging it?