Apologies for the rather cryptic title of this post which concerns this month's decision of the European Court of Justice in Ryanair Ltd vs PR Aviation BV. This goes back to 2010 and Ryanair's complaint to a Dutch Court about PR Aviation 'scrapping' the Ryanair database. PR Aviation operate a price comparison and booking site for flights, for which purpose it scraped data from the Ryanair website.
The case illustrates that in an age of 'machine to machine' communications, contracts and licences may trump intellectual property rights.
Ryanair argued before the Dutch Court that (1) PR Aviation's webscraping infringed its copyright and/or database right (also known as the) derived from the Directive for the Legal Protection of Databases and (2) that PR Aviation also breached the terms of Ryanair's website which state that "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 fact, Ryanair lost on (1) before the Dutch Courts which decided that the scrapped data did not benefit from copyright protection under the Database Directive, nor did it meet the 'substantial investment' test under that Directive to qualify for the database right protection.
The single issue decided by the CJEU was whether the freedom to use such a database can be controlled by contract or whether freedom to contract is overriden by the Direcctive.
The Database Directive gives the 'lawful user' of a database the right to use substantial parts of a database without requiring the consent of the owner for specified purposes, and thus without infringing either the copyright or database right. For example, the 'lawful user' can extract or re-utilise the database's contents without requiring consent i.e do the things.... " which is necessary for the purposes of access to the contents of the databases and normal use of the database"."
The Directive goes on to state that any contractual provision which overrides these 'carve outs' to copyright and database right are null and void.
The point decided by the CJEU was this: as the Ryanair dataset scraped by PR Aviation's search engine was not protected by copyright or database right - because it did not meet the thresshold for legal protection - the provisions in the Database Directive which rendered null and void contractual limitations on the 'lawful user's' right to use the database did not apply.
So the result is that freedom to contract wins on issue (2) - The restriction in Ryanair's website terms against web scraping were not overriden nor rendered null and void by the Database Directive.
This decision may be significant as we move increasingly to the use of 'machine readable' permissions (aka licence terms) which attach the use of content and effectively 'travel with' that content, thereby communicating the ways in which that content may be lawfully used. That's actually good news because in a world of digital distribution, it's in everyone's interests to use technology to make it easy to find, clear and use content.
In my view, this doesn't mean that rights owners will or can use contracts to 'lock up' content - bear in mind this decision relates only to data in a database and not to to copyright content sitting in databases, Rights owners don't want to 'lock up' content. Rather, they make it available across a multitude of platforms but on terms that where it is protected by copyright, there is an infrastructure in place which delivers that content to consumers and assures rights holders, from creators onwards, that they get remunerated where they of a fair return on their creative and economic investment.
There's a good analysis of the Ryanair case on the IPKat Blog here.
Have a good week.