In the analogue world, we've all got a pretty clear idea of what constitutes "copying" of books, films, music and other material. But in the online world, it's still early days in applying legal rules to extracting materials from websites, whether done manually by automatically by crawlers and other software tools. And I'm not just talking about search engines here.
Let's take a quick look at a couple of cases. The first illustrates the risks of web scraping. The 2nd shows that the database right can be used to stop using source material as teh basis for a new database, even where no tangible copying takes place.
Both cases demonstrate that we still have a long way to go to move to a 'permissions-aware' environment where 'machine to machine' permissions are expressed and followed. As everyone goes back to basics in a tough economic climate, there's real money to be made in licensing.
This month, Ryanair won a victory in a German court against a tour company, Vtours, it accused of screen scraping its website so that Vtours could offer Ryanflights on their site. ("There are a number of synonyms for screen scraping, including: Data scraping, data mining, page spidering, web crawling, data extraction, web scraping, page scraping, web page wrapping and HTML scraping (the last four being specific to scraping web pages" - Wikipedia)
The Hamburg Court ordered Vtours to stop the practice, accepting Ryanair's arguments about breach of its website terms and conditions and copyright infringement.
As the Court granted an injunction, we haven't yet heard the detailed arguments. If it had, one of the key weapons in Ryanair's case could have been the Database Directive.
The Database Directive is the sleeping giant in the European online legal world, at least as far as rights in data and other online information is concerned. It was introduced by a Directive in 1996 and what little case law there been is inconclusive. The Directive provides a 'double layer' of legal protection for "databases", including websites. There is copyright protection for the selection and arrangement of the database if there is sufficient 'originality' in the selection and arrangement. There is also a new right - the 'database right' (sometimes called the 'sui generis' right) which protects the investment made by the database producer in 'obtaining, verifying and presenting' the contents of the database. The owner of this new right can stop unauthorised 'extraction' or 'reutilisation' of its investment in its database.
Interestingly, there was a recent case which, although not Web-related, has significant implications for data scrapping and similar practices.
The case involved the University of Freiburg and Directmedia Publishing and the decision was announced on 10 July.
Professor Knoop of the University of Freiburg compiled a list of the 1100 most important poems in German literature between 1730 and 1900 as part of the University's "vocabulary of hte classics" project. It took 2.5 years to complete. The list contained extensive information about the 100 poems. DirectMedia published a CD-ROM called "1000 poems everyone should have." DirectMedia used the list of verse titles from the project as a guide. It examined Professor Koop's selection, omitted some and added others. The actual text of the poems published on the CD-ROM were taken from DirectMedia's own digital resources.
The Professor sued for infringement of his copyright in the compilation and the University sued DirectMedia for infringement of its database right.
During the Court proceedings, the German Court referred a question to the European Court of Justice. In a nutshell, the ECJ decided thatthe database right can be infringed without any actual or tangible copying taking place. Basically, the Court took the view that the database right protected the investment made by the University in compiling the list. The fact that there was no direct copying of the list or the anthology by DirectMedia didn't matter. By using the list as the basis for its CD-ROM has involved unauthorised 'extraction'.
If you'd like to learn more about the Database Right, there are several articles on the subject in the 'Knowledge Zone' on my website.
If you're headed for the beach, mountains or anywhere else, have a great break!