The Court of Justice centers the database right around the question of the substantial investment of the maker of the database and the risk that that investment may not be redeemed.
For a
long time, sui generis database rights were not on the agenda of the CJEU. On 3
June 2021 in CV-Online v. Melons C-762/19
the Court of Justice issued a new decision on this topic, reiterating and
reinforcing the principles of this special protection mechanism.
Background
CV-Online, a Latvian company, operates the website
www.cv.lv. That website includes a database, developed and regularly updated by
CV-Online, containing job advertisements published by employers. The website is
also equipped with meta tags of the ‘microdata’ type. Those tags, which are not
visible when the CV-Online web page is opened, allow internet search engines to
better identify the content of each page in order to index it correctly. In the
case of CV-Online’s website, those meta tags contain, for each job
advertisement in the database, the following key words: ‘job title’, ‘name of
the undertaking’, ‘place of employment’ and ‘date of publication of the
notice’.
Melons, also a Latvian company, operates the
website www.kurdarbs.lv, which is a search engine specialising in job advertisements.
That search engine makes it possible to carry out a search on several websites
containing job advertisements, according to various criteria, including the
type of job and the place of employment.
By means of hyperlinks, the website www.kurdarbs.lv
refers users to the websites on which the information sought was initially
published, including CV-Online’s website. By clicking on such a link, the user
can, inter alia, access the website www.cv.lv, in order to become acquainted
with that website and the entirety of its contents. The selection of job
advertisements to which the hyperlinks refer is made using the specialised
search engine provided by Melons.
That search engine indexes and copies on its own
server the content of websites with job advertisements, such as the ‘www.cv.lv’
website, and then allows searches to be made of that indexed content according
to criteria such as the nature of the job and the place of employment. The
information contained in the meta tags inserted by CV-Online in the programming
of its website is also displayed in the list of results obtained when using the
specialised search engine of Melons.
Decision
Database
protection
The purpose of the sui generis database right is to ensure that the person who has
taken the risk of making a substantial investment in terms of human, technical
and/or financial resources receives a return on his or her investment by
protecting him or her against the unauthorised appropriation of the results of
that investment.
The Court of Justice therefore starts with
reminding that protection of a database is justified only if there has been a
substantial investment, qualitatively and/or quantitatively, in the obtaining,
verification or presentation of the contents of that database.
Investment in the obtaining of the contents of a
database concerns the resources used to seek out existing independent materials
and collect them in the database, and not the resources used for the creation
as such of independent materials. Next, investment in the verification of the
contents of a database must be understood to refer to the resources used, with
a view to ensuring the reliability of the information contained in that
database, to monitor the accuracy of the materials collected when the database
was created and during its operation. Lastly, investment in the presentation of
the contents of the database includes the means of giving that database its
function of processing information, that is to say those used for the
systematic or methodical arrangement of the materials contained in that
database and the organisation of their individual accessibility.
Database infringement
Infringement takes place when a third party ‘extracts’
and/or ‘re-utilises’ contents of the database without the consent of the maker.
‘Extraction’ and ‘re-utilisation’ are
interpreted broadly, ‘extraction’ being ‘the permanent or temporary transfer of
all or a substantial part of the contents of a database to another medium by
any means or in any form’ and ‘re-utilisation’ covering ‘any form of making
available to the public all or a substantial part of the contents of a database
by the distribution of copies, by renting, by on-line or other forms of
transmission’.
When assessing infringement it is necessary
according to the Court of Justice to strike a fair balance between, on the one
hand, the legitimate interest of the makers of databases in being able to
redeem their substantial investment and, on the other hand, that of users and
competitors of those makers in having access to the information contained in
those databases and the possibility of creating innovative products based on
that information. It should thereby be borne in mind that content aggregators,
such as Melons, contribute to the creation and distribution of products and
services with added value in the information sector. By offering their users a
unified interface enabling them to search several databases according to
criteria relevant to their content, they allow the information on the internet
to be better structured and to be searched more efficiently. They also
contribute to the smooth functioning of competition and to the transparency of
offers and prices.
In the present case, Melons’ search engine makes it
possible to explore all the data contained in the databases freely accessible
on the internet, including CV-Online’s website, and provides its users with
access to the entirety of the content of those databases by a means other than
that provided for by the maker of those databases. Anyone at all can use such a
search engine. Moreover, by indexing and copying the content of the websites on
its own server, Melons’ search engine
transfers the content of the databases that comprise those websites to another
medium.
These acts constitute measures of extraction and
re-utilisation of the database that are to be prohibited provided, however, that
they have the effect of depriving the maker of the database of income intended
to enable him/her to redeem the cost of his/her investment. It follows that the
main criterion for balancing the legitimate interests at stake must be the
potential risk to the substantial investment of the maker of the database
concerned, namely the risk that that investment may not be redeemed.
Conclusion
The decision of the Court of Justice takes a pragmatic
approach, centring the database right around the question of the substantial
investment of the maker of the database and the risk that that investment may
not be redeemed.
This leaves an important role to the
national courts to ascertain, on the basis of the guidelines given by the Court
of Justice, whether the obtaining, verification or presentation of the contents
of a database amounts to a substantial investment, and, if so, whether the
extraction or re-utilisation constitutes a risk to the possibility of redeeming
that investment.
7 July 2021