Price-comparison websites in the EU are often lawful because the websites they take their information from are databases frequently unprotected by either copyright or the ‘sui generis’ right enshrined in the EU’s Database Directive 96/9/EC. This is true of Ryanair’s website. But Ryanair’s website is however protected by a plank of deviant Dutch ‘copyright’ law. In this case, a Dutch website that compares the price of airfares is seeking to rely on a Dutch exception to the Dutch ‘copyright’ rule, an exception that corresponds to one found in the EU’s Database Directive. The legal question has become whether the Directive applies to all databases and thus websites – even the unprotected ones – and, if so, whether the price-comparison website qualifies as a ‘lawful user’, who does not need to obtain Ryanair’s consent to use Ryanair’s website.
PR Aviation runs a price-comparison website called Wegolo. The site allows its users not only to compare the flight details and prices of 75 ‘low cost’ airlines but also, on payment of 7 euro, even to book their flights directly through the Wegolo site rather than needing to visit a particular flight operator’s website.
One of the low cost airlines was Ryanair. This is an Irish company which operates flights across the EU. Its website welcomes people but not machines. Roughly translated, the terms and conditions governing the use of its website now stipulate:
‘Permitted use. You may only use this website for the following private and non-commercial purposes: (i) looking at the website (ii) making reservations (iii) changing and or amending reservations (iv) checking arrival and departure information (v) checking-in online (vi) visiting other websites from the links provided on this website (vii) the use of other services and facilities provided on this website.
Removing data from either this website or that of www. … com by using automated-software systems (“screen scraping”) for commercial purposes is prohibited unless third parties have concluded a written licence, under which the third party is offered access to Ryanair’s information about prices, flights and timetables solely for the purposes of price-comparison.’
In 2008, the law applicable to the website was English law; in 2009, this was changed to Irish law.
At the District Court of Utrecht
In 2008, Ryanair first sued PR Aviation before the Utrecht District Court. First, it claimed that its rights under the Database Directive 96/9/EC had been infringed. Second, it claimed that its rights under an old provision of the 1912 Dutch Copyright Act had been infringed. The provision, which dates from the 19th century, protects ‘unoriginal’ things like address books, and television programme listings. Third, Ryanair claimed that PR Aviation had accepted the terms and conditions of the Ryanair website – terms which prevented PR Aviation from using it for commercial purposes. Fourth, Ryanair claimed that since PR Aviation’s use of the site contravened Ryanair’s rules and, PR Aviation was thus to be found wonting in this respect, PR Aviation was therefore guilty of a ‘non-performance’ [wanprestatie].
PR Aviation denied Ryanair’s claims. Its defence was that Ryanair’s database was either unprotected by the Database Directive or that it had failed to support its claim. Second, if PR Aviation was using Ryanair’s database contrary to the old provision of the Dutch Copyright Act, then PR Aviation’s use was not unlawful for two reasons. First, that old plank of Dutch law should have been removed from the statute when the Dutch Parliament was implementing the Database Directive. Second, even if PR Aviation were wrong on the first point, then in any event PR Aviation’s use of the Ryanair website did not constitute an unlawful use. Lawful use was governed by a further provision of the Dutch Copyright Act, and when that provision was applied here, PR Aviation could not be said to be infringing any rights under the old provision of the Dutch Copyright Act. The final plank of PR Aviation’s defence was to claim that Ryanair’s rules, which prohibited the use of the information, in effect prevented consumers from being shown a proper price comparison – that fact, PR Aviation submitted, showed that Ryanair was acting in breach of a dominant position.
The Utrecht District Court dealt with jurisdiction first. Although English law was applicable, the Utrecht District Court decided it was competent. PR Aviation was based in Holland so the legal basis for competence was Article 2 of the EU’s ‘jurisdiction’ Regulation 44/2001. Further, the District Court held that as far as the claim related to ‘non-performance’, the parties were deemed to have tacitly consented to the application of Dutch law, and so the Dutch court enjoyed competence by dint of Article 14 of Regulation 864/2007 (Rome II).
What followed were two judgments, dating from 2008 and 2010. The Utrecht District Court held that Ryanair’s Database claim failed – Ryanair had failed to show that its database was protected under the Directive. However, the district court allowed Ryanair’s claim made in respect of the old provision of the Dutch Copyright Act. Thus, the district court granted an injunction to stop further infringements. For good measure, the district court also pointed out that even if the old provision of the Dutch Copyright Act was contrary to the Database Directive and (post-Infopaq (C-5/08) even the InfoSoc Directive), then the district court was mindful of the fact that it had been a conscious decision of the Dutch Parliament to have retained the old statutory provision of the Dutch Copyright Act when implementing the EU’s Database Directive. Therefore, the district court found that the old provision was still good law.
In respect of Ryanair’s screen-scraping claim, the district court held that that claim failed for lack of evidence. Ryanair had failed to establish why PR Aviation’s use of the Ryanair website constituted an act of ‘screen-scraping’. Thus, that claim was rejected.
Ryanair’s claim for damages was also rejected in so far as Ryanair’s database was not protected by the Database Directive. But since PR Aviation had been found largely in the wrong, legal costs would be awarded against it.
At the Amsterdam Court of Appeal
On appeal, Ryanair once again submitted that its database rights had been infringed. The Amsterdam Court of Appeal rejected that submission.
But PR Aviation had also appealed the district court’s judgment. It disagreed with the finding that it had infringed the old provision of the Dutch Copyright Act. This plank of the appeal was successful.
The Amsterdam Court of Appeal noted that the parties had agreed that Ryanair’s database was a collection of data ordered systematically and made available electronically. That brought it within the scope of the old provision in the Dutch Copyright Act. However, the court pointed out that it was also Dutch law that there would be no infringement in circumstances where the copyright-relevant act of reproduction had been necessarily committed by a lawful user who, in the course of accessing the data collection, was making normal use of the collection.
Consequently, the Amsterdam Court of Appeal held that PR Aviation’s use of Ryanair’s website was normal, and that PR Aviation was a lawful user of Ryanair’s website. After all, Ryanair had made its collection of flights data freely available on the Internet; this was not a database which was only available on the basis of a licence or other usage right; PR Aviation’s use of it was not a problem; and PR Aviation had not circumvented any technological protection mechanisms.
The Amsterdam Court of Appeal also went on to find that Ryanair’s terms and conditions prohibiting third parties from using the site for commercial purposes did not alter that conclusion. At this point, the Amsterdam Court of Appeal justified itself by referring to a mandatory provision squirrelled away elsewhere in the Dutch Copyright Act that stipulates that an agreement is not to be interpreted against a lawful user.
The Amsterdam Court of Appeal also dismissed Ryanair’s appeal in relation to its other heads of claim, tort, and ‘non-performance’.
At the Dutch Supreme Court
The Dutch Supreme Court had the benefit of an opinion from one of its many Advocate Generals. This particular advocate general was Professor Verkade. He is a specialist in IP law. He thought that the old provision of the Dutch Copyright Act could no longer be maintained in light of both existing legal literature, and the CJEU’s judgments in cases such as C-604/10, Football Dataco; Joined Cases C-403/08 and C-429/08, Football Association Premier League Ltd; and C-5/08, Infopaq. Nevertheless, he was clear that this old plank of Dutch copyright law was just that – a matter of national law that did not lend itself to being made the object of a question to the CJEU. What should however be made the object of questions to the CJEU was for example the concept of the ‘lawful user’, and he produced a richly footnoted opinion to guide the judges in the Dutch Supreme Court.
The Dutch Supreme Court was not so much troubled by the issue of the old provision in the Dutch Copyright Act. It noted that the Dutch Parliament had consciously kept the provision alive when attempting to correctly implement the Database Directive. After the CJEU’s later judgment in C-604/10, Football Dataco, that belief of the Dutch Parliament might well have turned out to have been mistaken but the requirements of legal certainty, and the need to avoid contra legum interpretations of the law, meant that that issue was not decisive in the current case.
Then the Dutch Supreme Court turned to the issue of the licensed access to Ryanair’s website. On this point, Ryanair had criticised the Amsterdam Court of Appeal for having insufficiently reasoned its judgment. After all, PR Aviation had accepted the generally applicable terms and conditions governing the use of the website. Furthermore, PR Aviation had then acted in breach of those conditions by using the data for commercial purposes without having concluded a written licence agreement – which meant that PR Aviation was guilty of ‘non-performance’.
The Dutch Supreme Court noted an initial difficulty. At first instance before the Utrecht District Court, PR Aviation had said that it had not accepted Ryanair’s general terms and conditions. The Amsterdam Court of Appeal however had worked on the assumption that even if PR Aviation had indeed accepted those terms, PR Aviation was not bound by those terms and conditions. This was because PR Aviation had successfully relied on the lawful user exception in Article 24a (3) of the Dutch Copyright Act, which corresponds to Article 15 of the Database Directive. As a matter of procedure, therefore, the Dutch Supreme Court took the view that PR Aviation had to be deemed to have consented to the general terms and conditions governing the use of Ryanair’s website.
The issue then became one of whether PR Aviation was a lawful user falling within Article 24a (3) of the Dutch Copyright Act, which corresponds to Article 15 of the Database Directive. Now, Article 15 of the Directive states baldly that contractual provisions which are contrary to Articles 6(1) and 8 of the Directive will be null and void.
Article 6 of the Directive sets down the exceptions to restricted acts. Paragraph 1 states:
The performance by the lawful user of a database or of a copy thereof of any of the acts listed in Article 5 which is necessary for the purposes of access to the contents of the databases and normal use of the contents by the lawful user shall not require the authorization of the author of the database. Where the lawful user is authorized to use only part of the database, this provision shall apply only to that part.
And Article 8 of the Directive, on the rights and obligations of lawful users, provides:
1. The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Where the lawful user is authorized to extract and/or re-utilize only part of the database, this paragraph shall apply only to that part.
2. A lawful user of a database which is made available to the public in whatever manner may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database.
3. A lawful user of a database which is made available to the public in any manner may not cause prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database.
In light of this EU legislative framework, the Dutch Supreme Court conjured up the following conclusion about the law. Chapter I of the Database Directive indicates that its scope is not restricted to those databases which are protected under Chapters II and III of the Directive. Thus, it is conceivable that one consequence of the Directive’s harmonising nature is that prohibitions in respect of protected databases apply equally to non-protected databases.
According to the Dutch Supreme Court, it was a conclusion resting on the following points:
a) Article 8 of the Directive may well be found in Chapter III on the sui generis right but it comes under the heading of ‘on the rights and obligations of lawful users’ and sets down, in general terms, that the maker of a database which is made available to the public (in whatever manner), may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents
b) Given the significance attached in Articles 6 and 15 of the Directive to the interests of the lawful use, Recitals 34 and 49 can be interpreted as meaning that protecting the interests of the lawful user is not to be restricted to the protection offered under Chapters II and III of the Directive
c) A general rule on the right of the lawful user of a database to commit every act listed in Article 5 of the Directive, and to do so without the consent of the database maker, accords with the aim of the Directive (as expressed in Recital 48) to afford an appropriate and uniform level of protection of databases as a means to secure the remuneration of the maker of the database.
My unofficial translation of the Dutch Supreme Court’s question reads:
Does the scope of the Database Directive also cover online databases that are neither protected in copyright under Chapter II of the Directive nor protected as a sui generis right under Chapter III of the Directive and yet where the freedom to use such databases cannot be restricted in contract by dint of the (whether or not corresponding) application of Articles 6(1) and Article 8, when read together with Article 15 of the Database Directive?
Given the prevalence of contract and licence terms which attempt to monopolise information which is essentially unprotected in EU IP law, it is to be hoped that whichever chamber of the CJEU hears this case will, in contrast to what happened in Innoweb, organise a hearing and not suppress the publication of any Advocate General’s Opinion.
It is also interesting to note that a low cost Irish airline has also sued a large Dutch travel agent in Germany because the Dutch website allowed its users to find and book low-cost flights directly and perhaps in contravention of the general terms and conditions governing the use of the low cost airline’s website. The litigation is couched not in the terms of the Database Directive but rather the law of unfair competition. In 2012, the Hanseatischen Oberlandesgerichts decided to refer the case to the German Supreme Court.
Update – 11 October 2014
The Second Chamber is due to hear Case C-30/14, Ryanair on 12 November 2014.
Update – 4 November 2014
For further analysis of the CJEU’s judgment in Case C-202/12, Innoweb ECLI:EU:C:2013:850 see Stephen Vousden “Innoweb, Search-Engines and Engineering Legitimacy in EU Law”, (2014) Intellectual Property Quarterly 280-306.
Update – 15 December 2014
Without the benefit of Advocate General Bot’s Opinion, the judgment of the Second Chamber is due on 15 January 2015.
Update – 15 January 2015
A version of the CJEU’s judgment in Case C-30/14, Ryanair ECLI:EU:C:2015:10 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.
JUDGMENT OF THE COURT (Second Chamber)
15 January 2015 ( )
(Reference for a preliminary ruling — Directive 96/9/EC — Legal protection of databases — Database not protected by copyright or the sui generis right — Contractual limitation on the rights of users of the database)
In Case C‑30/14,
REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Netherlands), made by decision of 17 January 2014, received at the Court on 22 January 2014, in the proceedings
PR Aviation BV,
THE COURT (Second Chamber),
composed of R. Silva de Lapuerta, President of the Chamber, K. Lenaerts (Rapporteur), Vice-President of the Court, J.-C. Bonichot, A. Arabadjiev and J.L. da Cruz Vilaça, Judges,
Advocate General: Y. Bot,
Registrar: C. Strömholm,
having regard to the written procedure and further to the hearing on 12 November 2014,
after considering the observations submitted on behalf of:
– Ryanair Ltd, represented initially by M. van Heezik, A. van Aerde and R. Le Poole, and subsequently by A. van Aerde and R. Le Poole, advocaten,
– PR Aviation BV, by A. Groen, advocaat,
– the European Commission, by J. Samnadda and F. Wilman, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
1 This request for a preliminary ruling relates to the interpretation of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20).
2 That request has been made in proceedings between Ryanair Ltd (‘Ryanair’) and PR Aviation BV (‘PR Aviation’) concerning the use by the latter, for commercial purposes, of data from Ryanair’s website.
‘1. This Directive concerns the legal protection of databases in any form.
2. For the purposes of this Directive, “databaseˮ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.’
‘In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.’
‘1. In respect of the expression of the database which is protectable by copyright, the author of a database shall have the exclusive right to carry out or to authorise:
(a) temporary or permanent reproduction by any means and in any form, in whole or in part;
(b) translation, adaptation, arrangement and any other alteration;
(c) any form of distribution to the public of the database or of copies thereof. …
(d) any communication, display or performance to the public;
(e) any reproduction, distribution, communication, display or performance to the public of the results of the acts referred to in (b).’
‘The performance by the lawful user of a database or of a copy thereof of any of the acts listed in Article 5 which is necessary for the purposes of access to the contents of the databases and normal use of the contents by the lawful user shall not require the authorisation of the author of the database. Where the lawful user is authorised to use only part of the database, this provision shall apply only to that part.’
‘1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
5. The repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.’
‘1. The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilising insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Where the lawful user is authorised to extract and/or re-utilise only part of the database, this paragraph shall apply only to that part.
2. A lawful user of a database which is made available to the public in whatever manner may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database.
3. A lawful user of a database which is made available to the public in any manner may not cause prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database.’
‘Any contractual provision contrary to Articles 6 (1) and 8 shall be null and void.’
11 Directive 96/9 was transposed into Netherlands law by the Law adapting Netherlands law to Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (Wet houdende aanpassing van de Nederlandse wetgeving aan richtlijn 96/9/EG van het Europees Parlement en de Raad van 11 maart 1996 betreffende de rechtbescherming van databanken) of 8 July 1999 (Stb 1999, p. 303, ‘the Database Law’).
‘Copyright is the exclusive right of the author of a literary, scientific or artistic work or his successors in title, to communicate that work to the public and to reproduce it, subject to the limitations laid down by law.’
‘1. For the purposes of this Act, literary, scientific or artistic works shall mean:
1. books, brochures, newspapers, periodicals and all other writings
3. collections of works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means are, without prejudice to other rights over the collection and without prejudice to copyright or other rights over works, data or other information contained in the collection, protected as independent works.
‘1. The reproduction by a lawful user of a data set as referred to in Article 10(3) which is necessary in order to gain access to, and make normal use of the data set, is not regarded as a breach of the copyright of the data set.
3 Article 24a(1) and (2) may not be derogated from by agreement to the detriment of a lawful user.’
The dispute in the main proceedings and the question referred for a preliminary ruling
15 PR Aviation operates a website on which consumers can search through the flight data of low-cost air companies, compare prices and, on payment of commission, book a flight. It obtains the necessary data to respond to an individual query by automated means, inter alia, from a dataset linked to the Ryanair website also accessible to consumers.
16 Access to that website presupposes that the visitor to the site accepts the application of Ryanair’s general terms and conditions by ticking a box to that effect. At the material time, those conditions contained the following clauses:
‘2. Exclusive distribution. This website and the Ryanair call centre are the exclusive distributors of Ryanair services. Ryanair.com is the only website authorised to sell Ryanair flights. Ryanair does not authorise other websites to sell its flights, whether on their own or as part of a package. …
3. Permitted use. You are not permitted to use this website other than for the following, private, non-commercial purposes: (i) viewing this website; (ii) making bookings; (iii) reviewing/changing bookings; (iv) checking arrival/departure information; (v) performing online check-in; (vi) transferring to other websites through links provided on this website; and (vii) making use of other facilities that may be provided on the website.
The use of automated systems or software to extract data from this website or www.bookryanair.com for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison.’
17 Relying on Directive 96/9, the Database Law and the Aw, Ryanair claimed that PR Aviation had infringed its rights relating to its data set and that it had acted contrary to the terms and condition of use of its website which the latter had accepted. It sought an order against PR Aviation to refrain from any infringement of its rights, on pain of a financial penalty and for PR Aviation to pay damages.
18 By judgment of 28 July 2010, the Rechtbank Utrecht (Local Court, Utrecht) dismissed Ryanair’s claim in so far as it was based on an infringement of Directive 96/9 and the Database Law. However, it accepted the application in so far as it was based on the Aw and ordered PR Aviation to refrain from any infringement of Ryanair’s copyright in respect of its flight data and to pay compensation for the harm suffered.
19 PR Aviation brought an appeal against that judgment. Ryanair brought a cross appeal challenging the assessment of the Rechtbank Utrecht, according to which it is not entitled to the protection provided for by Directive 96/9 and the Database Law.
21 In essence, it held, as regards copyright, that even assuming the digital information made public by Ryanair were covered by the protection of written materials (‘geschriftenbeschering’), for the purpose of Article 10(1)(1) of the Aw, PR Aviation had not infringed Ryanair’s rights, given that its conduct corresponded to normal, within the meaning of Article 24a(1) of the Aw, and therefore legitimate use of the Ryanair website. It added that the prohibition in Ryanair’s terms and conditions on using its website for commercial purposes was not capable of invalidating the previous finding, taking account, in particular, of Article 24a(3) of the Aw, which corresponds to Article 15 of Directive 96/9.
22 As regards the sui generis right, the Gerechtshof te Amsterdam held that Ryanair had not established the existence of ‘substantial investment’ in the creation of its data set, within the meaning of Directive 96/9 and the Database Law.
23 Ryanair has appealed against the judgment of the Gerechtshof te Amsterdam before the Hoge Raad der Nederlanden (Netherlands Supreme Court). In support of its appeal, it relies on a single ground of appeal which consists of two parts.
24 In the first part of that ground of appeal, Ryanair criticises the assessment of the court of appeal, according to which it is not entitled to the protection of written materials for the purposes of Article 10(1)(1) of the Aw.
25 In that connection, the referring court takes the view that no criterion other than that of originality is effective for the purposes of protection by copyright. Observing that it follows from the judgment of the Gerechtshof te Amsterdam that Ryanair’s data set does not satisfy that criterion, it concludes that that part of the ground of appeal relied on by Ryanair cannot result in the judgment being set aside.
26 In the second part of its ground of appeal, pleaded in the alternative, Ryanair claims, essentially, that the Gerechtshof te Amsterdam wrongly held that the fact that PR Aviation had ignored the contractual prohibition preventing it from extracting data from Ryanair’s database for commercial purposes without having concluded a written licence agreement with Ryanair did not constitute an infringement on its part.
27 In that connection, the referring court asks whether the scope of Directive 96/9 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.
‘Does the operation of [Directive 96/9] also extend to online databases which are not protected by copyright on the basis of Chapter II of [that 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 Article[s] 6(1) and 8 in conjunction with Article 15 [of Directive 96/9], may not be limited contractually?’
The question referred for a preliminary ruling
29 By its question, which is based on the premiss that the Ryanair dataset at issue in the main proceedings constitutes a database, within the meaning of Article 1(2) of Directive 96/9, which is not protected by copyright on the basis of Chapter II thereof or the sui generis right on the basis of Chapter III, which is for the referring court to verify, that court asks essentially whether Directive 96/9 must be interpreted as meaning that, taking account of the combined application of Articles 6(1), 8 and 15 thereof, the freedom to use such a database cannot be contractually limited.
30 As a preliminary point, it must be recalled that, according to settled case-law, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, inter alia, judgments in Faccini Dori, C‑91/92, EU:C:1994:292, paragraph 20; Kücükdeveci C‑555/07, EU:C:2010:21, paragraph 46; and Dominguez, C‑282/10, EU:C:2012:33, paragraph 37).
31 It is also settled case-law that in applying national law, the national court called on to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in question (see, inter alia, judgments in Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 114; Kücükdeveci, EU:C:2010:21, paragraph 48; and Dominguez, EU:C:2012:33, paragraph 24).
33 Although, as PR Aviation states, Article 1(2) of Directive 96/9 confers a wide scope on that concept, unencumbered by considerations of a formal, technical or material nature (see to that effect judgment in Fixtures Marketing, C‑444/02, EU:C:2004:697, paragraphs 20 to 32), the fact remains that the definition in that provision applies, according to the wording of that article, ‘for the purposes of this Directive’.
34 According to Article 1(1) of Directive 96/9, its aim is ‘the legal protection of databases’. In that regard, that directive institutes two forms of legal protection of databases. The first form, governed by Articles 3 to 6 thereof in Chapter II, consists in protection by copyright and is applicable, in accordance with Article 3(1) of that directive, to databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation. The second form, governed by Articles 7 to 11 of Directive 96/9, in Chapter III thereof, consists in protection on the basis of a sui generis right and is applicable, according Article 7(1), to databases in respect of which there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents. Those two forms of legal protection are the object of common provisions, in Articles 12 to 16 of that directive set out in Chapter IV thereof.
35 Therefore, contrary to PR Aviation’s assertions, the fact that a database corresponds to the definition set out in Article 1(2) of Directive 96/9 does not justify the conclusion that it falls within the scope of the provisions of that directive governing copyright and/or the sui generis right if it fails to satisfy either the condition of application for protection by copyright laid down in Article 3(1) of that directive or the conditions of application for the protection by the sui generis right in Article 7(1) thereof.
36 As regards the provisions of Directive 96/9 specifically mentioned by the referring court in its question, it should be added that Article 6(1) thereof which, under certain conditions, authorises a lawful user of a database to perform the acts referred to in Article 5 without the authorisation of the author of that database, falls, like Article 5, within the chapter of the directive on copyright and, therefore, is not applicable to databases not protected by that right.
37 Article 8 of Directive 96/9, which sets out, in particular, the rights of a lawful user of a data base is in the chapter of that directive concerning the sui generis right and does not therefore apply to databases not protected by that right.
38 As to Article 15 of Directive 96/9, which affirms the mandatory nature of certain provisions of that directive by declaring null and void any contractual provision contrary to it, that provision explicitly refers only to Articles 6(1) and 8 of that directive.
39 Thus, 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.
40 That analysis is supported by the general scheme of Directive 96/9. As Ryanair and the European Commission have stated, that directive sets out to achieve a balance between the rights of the person who created a database and the rights of lawful users of such a database, that is third parties authorised by that person to use the database. In that context, Articles 6(1), 8 and 15 of Directive 96/9, which confer rights on lawful users and, in so doing, limit those of the person who created the database, are applicable only in respect of a database over which its author has rights to title, either copyright in Article 5 of that directive or the sui generis right in Article 7 thereof. However, it is irrelevant with regard to a database whose author does not enjoy any of the abovementioned rights under Directive 96/9.
41 Contrary to PR Aviation’s submissions, that interpretation of Directive 96/9 is not capable of reducing the interest in claiming legal protection instituted by that directive in that the author of a database protected by that directive, unlike the author of a database which is not so protected, does not have the contractual freedom to limit the rights of users of its database.
42 Such arguments ignore the legal and economic interest that the system of automatic protection represents for a person who has invested in the creation of a database, harmonised in the Member States, which attaches to the exclusive right under copyright to reserve the right to perform the various acts referred to in Article 5 of Directive 96/9 and the right to prohibit under the sui generis right the acts referred to in Articles 7(1) and (5) and 8(2) thereof. As the Commission stated at the hearing, the benefit of that protection does not require any administrative formalities to be fulfilled or any prior contractual arrangement.
43 That being the case, if the author of a database protected by Directive 96/9 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.
44 However, as regards a database to which Directive 96/9 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.
45 Having regard to all of the foregoing considerations, the answer to the question referred is that Directive 96/9 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.
46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 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.
Language of the case: Dutch.
EU Law Radar links to later CJEU Citations
Update – 14 October 2015
I have written an article for a forthcoming edition of the I.P.Q. which analyses the CJEU’s Ryanair judgment in greater depth.
Update – 15 November 2015
My article, ‘Autonomy, Comparison Websites and Ryanair‘ in volume 4 of the 2015 Intellectual Property Quarterly at pages 386-406 is available via Westlaw.