No Database? Protection of Documents as a Safety Net
Court of Utrecht 28 July 2010,
LJN:BN 2268 (in Dutch), Ryanair
Limited/PR Aviation B.V.
On its websites wegolo.com and wegolo.nl PR Aviation offers
consumers the possibility to search flight data and to compare
flight prices. Besides this search system, PR Aviation offers
customers the option of booking the flight found through its
intermediary services. However, Ryanair has objected to the use of
its flight data by PR Aviation.
Investments Insufficiently Specified - No Database
According to Ryanair, the collection of flight data on its website
must be regarded as a protected Database, and therefore PR Aviation
should not be allowed simply to extract and reuse large parts of
that database. In this dispute, as often, the question whether this
collection is indeed a Database focused on whether Ryanair was able
to prove that it had made substantial investments in this database
(Section 1 (1) (a) of the Databases Act). Pursuant to European case
law, the only costs eligible as investments are costs related to
the acquisition and organization of the data. Costs
related to the creation of data are excluded.
The Court then examined critically whether the costs alleged by
Ryanair really met this standard. In the Court's opinion, the
item 'investments in the presentation of the contents of the
flight data collection' only covers the costs of having the
data processed. This item does not include the costs of offering
and booking of flights or the communication with the public. The
staff costs of implementing changes in the collection of flight
data (the database) are eligible, but not the costs of drafting of
those data. Costs relating to the accessibility and operation of
the website and Ryanair's ordinary business operations are also
insufficiently related to the database to be considered as
investments.
However, Ryanair had entered per item all costs relating
to its flight data website. This 'entanglement' of costs
eligible and not eligible as investments in the database makes it
impossible for the Court to adjudicate the amount of the
investment, and consequently the existence or non-existence of a
protected Database. The Court therefore denied Ryanair's
reliance on the Databases Act.
Safety Net of Ryanair: Flight Data Protected as
Document
In the Netherlands, a collection of factual data - even if it is no
protected Database - is still protected on grounds of the
protection of documents in the Dutch Copyright Act (Section 10
(1)). However, the protection of such a collection of data is less
far-reaching than the 'normal' copyright-law protection,
and only offers protection against (demonstrable) derivation by
third parties through a 'simple repetition' of those data.
PR Aviation acknowledges that it has copied the flight data
directly from Ryanair's website; the derivation is therefore an
established fact. The next question is whether this is a
'simple repetition' of Ryanair's data. Because PR
Aviation claims to receive about 22,000 requests for price
comparisons daily, the Court held that in any case the data of
Ryanair are systematically being copied. PR Aviation has claimed
that it concerns only a small selection of Ryanair's flight
data, but has not substantiated this argument. Moreover, the Court
held that - in line with previous case law - even one single search
request in which only a selection is copied may be considered to be
a 'simple repetition'. The defense that PR Aviation changes
the copied data by arranging them in a different order also does
not hold here, because the Court considers these changes to be only
minor, so that the simple repetition of Ryanair's flight data
still exists.
Ryanair is therefore allowed to prohibit the copying of its flight
data by PR Aviation, because its collection of data enjoys the
protection of documents.
Conclusion
This ruling shows once again how hard it is to prove that
substantial investments have been made in a database. Ryanair was
rapped on the knuckles by the Court here for claiming all
the costs related to its website. The costs entered must be
specified in the greatest possible detail, so that it is clear for
the Court which activities the costs relate to. Would it be a good
idea for producers of databases to record these costs neatly from
the start? This would make a future reliance on the protection
under the Databases Act a lot easier - provided that the investment
is sufficiently substantial.
The ease with which Ryanair has won this case on the basis of the
protection of documents may be partly due to the, at first sight,
tame litigation conducted by PR Aviation; PR Aviation has not
disputed that it derived the data directly from Ryanair's
website, nor has it relied on the right to quote as an exception to
Ryanair's copyright to the flight data. The question whether
such a reliance would have been successful depends on the volume of
data PR Aviation copies per search request; is this proportionate
in nature and extent to the purpose for which PR Aviation quotes -
in this case the offering of cheap flights in searchable form?
Despite the possible gaps in PR Aviation's defense, this ruling
shows that an owner of a database in the Netherlands has the
protection of documents available - besides the less effective
Databases Act - as a useful weapon to fight the use of (parts of)
its database. It is the question whether reliance on this
protection is in line with the freedom of speech of Article 10 of
the ECHR. It is in the interest of consumers that providers like PR
Aviation can freely use factual data (such as Ryanair's flight
data) in order to offer practical search services and price compare
services on the Internet. It is not for nothing that the test for
protection set out in the Databases Act is so strict; this was done
to guarantee that only the collection and organization of data is
protected, but not the data themselves. However, in this case the
protection of documents offers Ryanair an effective means to take
action against the use of precisely these factual data. Despite the
strained terms between this protection and the freedom of speech of
Article 10 of the ECHR, the Dutch Supreme Court - which the Court
followed in this judgment - has ruled expressly that the protection
of documents will be maintained, also after the introduction of the
Databases Act.
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