No Database Protection for Airline Reservation System
Judgment of the Court of Amsterdam in preliminary relief
proceedings, 1 October 2009, LJN: BJ9179
The Dispute
Travelport exploits an aviation reservation system, in which travel
agents can make travel reservations. This system contains flight
schemes and rates of almost all airline companies and also
information about hotels and car rental. 63,000 travel agents are
connected to this system and the amount of data that is being
processed is enormous. Per passenger a file is kept containing his
name and address details, his flight scheme, possible transfers and
diet wishes etc. According to Travelport itself, the annually
recurrent investments of Travelport amount to 158 million dollar.
Travelport is an American company with a subsidiary in the
Netherlands that is responsible for part of the exploitation.
Travelport has a dispute with IATA (International Air Transport
Association). IATA is a Canadian company that is responsible for
handling the payments between the airline companies and the travel
agents. For this purpose IATA receives data about the passengers of
Travelport, on the basis of an agreement.
Both parties develop business intelligence products that they offer
to airline companies, with which products these companies can
comfortably consult information about flights, number of
passengers, destinations etc. and can adjust their marketing
strategy to this. Travelport takes the position that IATA is using
data provided by Travelport and therefore infringes its database
right, and Travelport claims a prohibition in preliminary relief
proceedings, not only for the Netherlands but throughout
Europe.
The Judgment of the Court
The Dutch Court has rejected all claims of Travelport in these
preliminary relief proceedings for a number of reasons.
First and foremost, the Court ruled that it has no
'competence' to impose a prohibition that extends beyond
the Netherlands. Each country has its own regulations for the
protection of databases, and what is prohibited in the Netherlands
may be allowed in another country. IATA does not offer its product
in the Netherlands, there are no Dutch customers and there is no
advertising aimed at the Netherlands.
Moreover, the data made available by Travelport to IATA do not
qualify as a 'database' within the meaning of the Databases
Act. The data are created by Travelport. Database law is not
intended for this. This law protects the investment that is being
made in order to check the accuracy of the data collected.
But the data that Travelport is saving in its system consist of the
reservations of the individual travellers, and the
creation of these data is not protected under database
law.
In addition thereto, it is necessary for database law protection
that a substantial investment is made, and the Court ruled that it
is not plausible that the Dutch subsidiary of the American company
Travelport has made such investments. The American company itself
is not entitled to a database right, because database law is a
'European' law which can only be relied on by companies
established in Europe.
To conclude, the Court ruled that IATA does not retrieve or
reuse a substantial part of Travelport´s database. Travelport
provides IATA with data per passenger ticket, always in a separate
file. According to the Court these are non-processed data and IATA
is free to store them in a database itself.
In proceedings about IP disputes a full compensation of legal
costs can be claimed. The parties had agreed to limit the legal
costs to be claimed to €100,000. In preliminary relief proceedings
that is a considerable amount. Because Travelport lost the
proceedings it had to pay those costs to IATA.
Conclusion
In hindsight, this case was not very suitable to be decided in
preliminary relief proceedings, in any case not in the Netherlands.
The extensive claim of the American company Travelport against its
Canadian competitor IATA had too few reference points with the
Netherlands. The Dutch subsidiary of Travelport did actually
perform the exploitation, but had not been responsible for the
investments. Subsequently, in the judgment the Court in preliminary
relief proceedings ticked off the conditions for database
protection one by one, and they were all decided to the
disadvantage of the claimant. It is important that it has been
confirmed once again that database law does not offer protection
for data that are being created, but only for the collection of
existing data. Preliminary relief proceedings are not suitable for
a further investigation of the facts, as opposed to proceedings on
the merits. In a case in which the facts are complicated, as in
this dispute, this may work out to the disadvantage of the
claimant.
Judgment (in Dutch)
here.