CJEU, C-762/19: The Sui Generis Right Of The Database Maker

In the judgment issued on 3 June 2021, the Court of Justice of the European Union (CJEU) gave a preliminary ruling on the interpretation of Directive 96/9/EC on the legal protection of databases ("the Directive").

The Directive defines the scope of protection of databases in the EU, providing for two different forms of protection: on the one hand, that based on copyright, which extendsto databases “by reason of the selection or arrangement of their contents, constitut[ing] the author's own intellectual creation” (art. 3). This kind of protection does not extend to the content of the database itself.

On the other hand, the Directive introduced a distinct form of protection, since “the making of databases requires the investment of considerable human, technical and financial resources while such databases can be copied or accessed at a fraction of the cost needed to design them independently“ (Recital 7 of the Directive) and “the unauthorized extraction and/or re-utilization of the contents of a database constitute acts which can have serious economic and technical consequences” (Recital 8).

This form of protection is constituted by the so-called sui generis right attributed to the maker of the database, a right regulated by art. 7 of the Directive, which prohibits the extraction and re-use of a substantial part of the contents of the database. It also defines the terms “extraction” and “reutilization”.

The judgment in the present case concerns the interpretation of Article 7(1) and (2) of the Directive1 , in the context of a dispute, which arose in Latvia, between two parties that were active in the same market sector (that of online job advertisements). The website kurdabs.lv, which is operated by the defendant in the main proceedings, the company Melons SIA, allows one to search for job advertisements appearing on other websites, including those of the claimant in the Latvian proceedings, CV-Online Latvia SIA. Melons' site enables the ads contained in the CV-Online database to be found. Further, the content that is extracted from the database can also be consulted directly from Melons' site.

The claimant in the main proceedings, CV-Online, is the owner of a database that it created and regularly updates, consisting of job advertisements published by employers. That database is accessible on the website cv.lv, which is also equipped with meta tags enabling search engines to index the content correctly – which are also exploited by Melons’ specialized search engine.

The Riga Regional Court (Rīgas apgabaltiesas Civillietu tiesas kolēģija) referred two questions to the CJEU for preliminary ruling, concerning (i) the application of art. 7(1) and 7(2) to the pending litigation, and (ii) the possible relevance of meta tags. The Court of Justice, which did not believe that the use of meta tags is relevant in this case, decided to reformulate the points into one single question: whether “an internet search engine specialising in searching the contents of databases, which copies and indexes the whole or a substantial part of a database freely accessible on the internet and then allows its users to search that database on its own website according to criteria relevant to its content, is ‘extracting’ and ‘re-utilising’ the content of that database within the meaning of that provision, and that the maker of such a database is entitled to prohibit such extraction or re-utilisation of that same database.”

To answer, the CJEU first cited the rationale of protection of the sui generis right according to the Database Directive, i.e. that of protecting the investment made "to constitute, verify or present the contents of a database for the limited duration of the right, granting to the maker of a database the option of preventing the unauthorized extraction and/or re-utilization of all or a substantial part of the contents of that database” (see Whereas 40 and 41 of the Directive).

Second, the Court recalled that the condition for the application of the sui generis right to databases is the proof “that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents”, pursuant to Art. 7 of the Directive.

The Luxembourg judges also pointed out that one of the main purposes of the legislation in question is to find a balance between the conflicting interests of the maker of the database and those of third parties, including competitors wishing to legitimately use part of the data contained in a given database.

Specifically, the CJEU insisted on the pro-competitive role of the so-called aggregators of Internet content (which include the company Melons), already underlined in the Advocate General’s Opinion (who also mentioned the example of flight search engines2 ): “Not only do they allow the information on the internet to be better structured and to be searched more efficiently, but they also contribute to the smooth functioning of competition and to the transparency of offers and prices.” (Opinion AG Szpunar, § 41).

The Court went on to state that the main criterion for balancing the conflicting interests is the potential damage to the substantial investment made by the database maker, hence the risk that the maker may not be able to recoup their investment because of the extraction or re-use of the contents of the database. Of course, this aspect must be assessed on a case-by-case basis by the national court.

Therefore, according to the EU Court of Justice, the concrete evaluation of the concepts of "extraction" and "re-utilisation" of the content of a database within the meaning of Article 7(1) and 7(2) of Directive 96/9/EC - and thus of the possible breach of those rules - is not tied to particular technical means. Rather, it depends on the prejudice that said extraction or re-utilisation of data actually causes to the investment of the maker for obtaining, verifying, or presenting the content of the database.