Topographic maps as databases: CJEU

The CJEU ruled that topographic maps may fall within database protection under Directive 96/9 (full text here). The dispute concerned the use by Verlag Esterbauer, an Austrian travel books publisher, of certain topographic maps published by the Land of Bavaria. In particular, Verlag Esterbauer scanned the maps and extracted the underlying geographic data with a graphics programme to produce and market its own maps dedicated to walkers and cyclists.

According to the Court, the concept of “database” must be interpreted widely, as collections of works and/or other data, in any form, without technical or material restrictions, therefore applying also to analog databases. Indeed, the Court stressed the “functional” nature of database protection and its aim at fostering investment in data processing systems.

The main requirement of a database under Art. 1(2) of Directive 96/9 is the existence of “independent materials”, i.e. separable without affecting their value. Independent materials can also consist of combination of pieces of information, if they have autonomous informative value after being extracted. This may be the case of geographical information (e.g., “geographical coordinates point” plus “the numbered code used by the map producer to designate a unique feature, such as a church”), as long as the extraction of such data from the map does not affect their autonomous value. Under the broad definition of database, this autonomous value shall be assessed vis-à-vis the degree of interest of third parties to the extracted material, irrespective of the fact that such value might diminish after the extraction.

The Court found that in the captioned case: (i) Verlag Esterbauer made an autonomous commercial use of the information extracted from the Land of Bavaria’s maps, and (ii) it provided its customers relevant geographical information. Thus, such geographical information constitutes “independent material” from a database.

It seems all too evident that the Court, in line with its settled case-law (see our comments on the Ryanair case here), keeps broadening the notion of database under Directive 96/9 with the aim of further protecting investments in the information market.

Francesco Banterle

CJEU, 29 October 2015, Case C-490/14, Freistaat Bayern v Verlag Esterbauer GmbH

ECJ: the Owner of an Online Database not Protected by Copyright or Sui Generis Right May Limit its Use by Contract

On January 15, 2015 the Court of Justice of the European Union (ECJ), in Ryanair Ltd v PR Aviation BV, C-30/14, handed down a decision concerning the interpretation of Directive 96/9/EC on the legal protection of databases (full text here). The case concerned the unauthorized extraction of flight data (so called ‘screen scraping’) from Ryanair’s website by the PR Aviation, which operates a price comparison website where users can also book a flight on payment of commissions. Access to Ryanair’s website requires acceptance of the air company’s T&Cs, by ticking a box, which prohibit unauthorized ‘screen scraping’ practices.

Ryanair brought proceedings against PR Aviation before Dutch courts for infringement of copyright and sui generis right on its database as well as breach of contract. Upon preliminary ruling requested by the Dutch Supreme Court, the ECJ ruled that the Directive 96/9/EC is not applicable to databases which are not protected either by copyright or by the so-called sui generis database right granted to the maker of the database (whether Ryanair’s website may be entitled to such protection shall be determined by the competent national court).

Therefore, according to the ECJ, mandatory exceptions to restricted acts laid down by Articles 6 and 8 of the Directive (allowing the ‘lawful user’ of the same to use the protected database without the author’s or maker’s consent, in certain cases and if certain conditions are met) do not prevent the database owner from laying down contractual limitations on its use by third parties, while the same contractual limitations are null and void vis-à-vis lawful users of those databases which benefit from copyright and/or sui generis right protections.

While the interpretative principle outlined by the ECJ is actually not very striking (insofar as it is rather clear from the literal text of the Database Directive that the legal regime implemented by it – including the mandatory rights of ‘lawful users’ – only apply to those databases which can be protected with copyright or the sui generis right), it is important to highlight that, according to general principles of contract law, any contractual provisions governing the use of unprotected databases may only be binding on third parties who accepted those provisions (and that, accordingly, should be deemed to be already aware of their content) and, conversely, cannot bind any third parties extraneous to the contractual relationship with the website owner. In the Ryanair case discussed above, the ECJ makes clear that the company that had ‘scraped’ Ryanair’s flight data without authorization had previously accepted Ryanair’s general T&Cs by ticking a box to that effect. What about if ones were to take the disputed flight data not from Ryanair’s website but from the price comparison’s website? In this scenario, Ryanair’s T&Cs, notably the ‘screen scraping’ prohibition, should not be deemed to apply.

Federica De Santis

Court of Justice, 15 January 2015, C-30/, Ryanair Ltd v PR Aviation BV, C-30/14