BREAKING: CJEU says that owner of an online database not protected by copyright or sui generis right may restrict its use by contract

As Tom explained a few days ago, 2015 will be a busy copyright year at everybody's favourite court, ie the Court of Justice of the European Union (CJEU), with both a number of cases awaiting decision and new ones likely to be referred by national courts.

Well, today's the day of the first copyright judgment of the year. The CJEU has just issued its 46-paragraph decision in Case C-30/14 Ryanair, a reference for a preliminary ruling from The Netherlands seeking clarification as regards the ever-sexy Database Directive [Directive 96/9].

There are two peculiarities of this reference worth highlighting, one shocking and the other, well, not-so-shocking. Starting with the latter, this is yet another case that the CJEU decided without the need for the Opinion of an Advocate General (AG) first [on the seemingly fading role of AGs in the EU copyright landscape see here]. As regards the shocking feature of this reference, this is that this time the CJEU had to answer just one (1!) question, ie:

Does the operation of the [Database Directive] also extend to online databases which are not protected by copyright on the basis of Chapter II of the Directive, and also not by a sui generis right on the basis of Chapter III, in the sense that the freedom to use such databases through the (whether or not analogous) application of Articles 6(1) and 8 in conjunction with Article 15 [of the Database Directive], may not be limited contractually?

Incidentally Merpel notes that neither the lack of an AG Opinion nor the fact that the CJEU only had to address one question prevented the Court from taking almost one year to deliver its ruling.

But what was this case all about?

Unsurprisingly, the CJEU ruled that
a database owner 
is subject to fewer constraints
than a passenger on a Ryanair flight

Background

Dutch company PR Aviation operates a website that allows [or rather: allowed?] customers in The Netherlands to compare the prices of low-cost airlines - including Ryanair - and, upon payment of a commission, book a flight. 

The problem is that the Terms of Use of the Ryanair website provide that this "is the only website authorised to sell Ryanair flights, whether on their own or as part of a package. Price comparison websites may apply to enter into a written Licence Agreement with Ryanair, which permits such websites to access Ryanair’s price, flight and timetable information for the sole purpose of price comparison."

It is not hard to imagine that Ryanair was not happy with the PR Aviation website, and indeed brought proceedings in The Netherlands for infringement of both Ryanair's contractual terms and rights - whether copyright or sui generis right - in its public database.

In 2010 the Local Court, Utrecht, partly dismissed Ryanair’s claims, notably those relating to the Database Directive and its Dutch transposition. In 2012 Court of Appeal, Amsterdam, completely ruled against Ryanair, holding that PR Aviation's conduct was a legitimate use of the Ryanair website. Ryanair appealed the decision before the Netherlands Supreme Court, which decided to stay the proceedings and refer the question mentioned above to the CJEU.

What the CJEU held

The CJEU ruled that the Database Directive only applies to databases protected by copyright or the sui generis right [it is left to the referring court to determine whether this is actually the case of Ryanair], and that the holder of a publicly accessible database is free to determine by contract and in compliance with the applicable national law the conditions of use of its database.

The same would not be true for a database protected by copyright or the sui generis right, because of a number of provisions, ie Articles 6(1), 8 and 15, in the Database Directive that - at certain conditions - prohibit contractual limitations in the use of a database.

In particular the CJEU held that: "it is clear from the purpose and structure of Directive 96/9 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." [para 39]

Why not booking your Fez hotel
through Booking.com ?

So?

This ruling does not look particularly shocking from a legal standpoint, yet it may have significant implications for the business model of those websites that, not only offer users the possibility to compare the prices of relevant goods or services, but also allow them to purchase such goods and services directly, without the need of going to the website of the actual provider of goods and services. 

But why could one possibly want to prevent customers from purchasing goods and services via third-party-operated websites? 

One reason may be to ensure the consistent quality of the services and goods provided, including with regard to post-sale assistance. For instance, in the string of recent cases against screenscraper websites, Ryanair has claimed that many of these third-party sites cause problems for Ryanair customers, as they fail to pass on vital information on issues such as flight changes, web check-in, and special needs assistance and contact details. 

Another, possibly more mundane, reason may have something to do with the revenues generated by the ads displayed on the actual provider's website, Ryanair itself probably being an example.

On a final note, it is perhaps worth observing how we are used to live in a world in which most people would be thrilled to be able to claim copyright or, at least, sui generis protection over their databases. Yet the decision in Ryanair shows that in some instances it is not that bad that this may not be the case, as at least one remains free to tailor the relevant contractual terms as they please.