Data scraping – a European steer
· CJEU considers business terms imposing contractual restrictions on extracting data from a database
· The Database Directive does not prevent this when there is no copyright or database right in a database
What's it about?
The European Court of Justice (CJEU) has ruled that an owner of a database that does not enjoy copyright or database right protection through the Database Directive, is not prevented by that Directive from imposing limitations on the use of its database through its terms of business.
The CJEU considered a reference from the Dutch Courts in a case brought by Ryanair against PR Aviation. PR Aviation operated a website, on which consumers could search through flight and price information from a number of low cost airlines, in order to select and book flights. PR Aviation obtained the data by using automated programs to scrape data from the airlines' websites. Ryanair argued that its data was contained in a database within its website, and its business terms which seek to prohibit scraping of data from its website in the absence of a licence agreement, could be imposed contractually on all visitors to its website.
The Dutch Courts had previously decided that Ryanair's website was not protected either by database copyright or the separate "sui generis" database right. They had also decided that the contractual prohibition in Ryanair's terms of use on using its website for commercial purposes fell foul of Article 15 of the Database Directive. This Article says that any act by a maker of a database (for example imposing contractual restrictions) which prevents lawful use of a database, shall be "null and void".
The CJEU's decision, that the Article 15 restrictions did not apply to a database that was not protected by the IP rights under the Directive, is logical. This is because the restrictions in the relevant Articles (6 and 8) are contained within the same sections of the Directive that deal with database copyright and sui generis database rights.
Why does it matter?
The increasing role of "big data" (an industry buzz phrase for the analysis of very large sets of data) has fuelled data scraping programs. Data scraping raises issues of contractual terms of use, database rights, copyright and other legal issues including the Computer Misuse Act. There is currently no English case dealing with all these issues concerning data scraping, so any case like this one provides a helpful steer.
Now what?
The CJEU has only decided this issue on a point of principle. The issue as to whether website terms of use can in fact prevent data scraping in any particular case where the Directive is not engaged, is a question of national law in each case. For example, it is now for the Dutch courts to decide if the Ryanair terms are actually enforceable against PR Aviation according to Dutch law.
Ryanair v PR Aviation BV, case C-30/14, 15 January 2015
For further information on this or any other IP related matter please contact Nick Rudgard on 0161 934 6340.
10-5218046-1/900000-900072