Data taken from a web site: Ryaniar v. PR Aviation, the preliminary ruling of the Court of Justice

On 15 Juanuary 2015 the Court of Justice set out a preliminary ruling in the case C-30/14 Ryanair v. PR Aviation BV about the use of data taken from a web site without authorisation.

PR Aviation operates a website on which consumers can search through the flight data of low-cost air companies, compare prices and, on payment of commission, book a flight. It obtains the necessary data to respond to an individual query, inter alia, from a dataset linked to the Ryanair website also accessible to consumers.

Actually, access to that website presupposes that the visitor to the site accepts the application of Ryanair’s general terms and conditions by ticking a box to that effect. Those conditions contained in particular the following clause:

«The use of automated systems or software to extract data from this website or for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison».

Ryanair tried to oppose the use of its data by PR Aviation on the basis of the Directive 96/9 and the Database Law.

By judgment of 28 July 2010 the local Court dismissed Ryanair’s claim but it accepted the application in so far as it was based on the breach of the contractual clauses of Ryanair. PR Aviation brought an appeal against that judgment and Ryanair brought a cross appeal.

By judgment of 13 March 2012, the Court of Appeal of Amsterdam set aside the first judgment and it held, as regards copyright, PR Aviation had not infringed Ryanair’s rights, given that its conduct corresponded to a legitimate use of the Ryanair website. It added that the prohibition in Ryanair’s terms and conditions on using its website for commercial purposes was not capable of invalidating the previous finding, taking account, in particular, of Article 15 of Directive 96/9.

Ryanair has appealed against the judgment before the Netherlands Supreme Court which decided to stay the proceedings and to refer to the Court for a preliminary ruling the question if the operation of Directive 96/9 also extend to online databases which are not protected by copyright and also not by a sui generis right in the sense that the freedom to use such databases may not be limited contractually.

The Court based its ruling on the premiss that the Ryanair dataset constitutes a database which is not protected by copyright or the “sui generis” right. Therefore the Court had to verify essentially whether Directive 96/9 must be interpreted as meaning that the freedom to use a database (not protected by law) cannot be contractually limited.

As to Article 15 of Directive 96/9, which affirms the mandatory nature of certain provisions of that directive by declaring null and void any contractual provision contrary to it, that provision explicitly refers only to Articles 6(1) and 8 of that directive.

Thus, it is clear from the purpose and structure of Directive 96/9 that Articles 6(1), 8 and 15 thereof, which establish mandatory rights for lawful users of databases, are not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that it does not prevent the adoption of contractual clauses concerning the conditions of use of such a database. That analysis is supported by the general scheme of Directive 96/9.

Therefore the author of a database to which Directive 96/9 is not applicable may claim protection for his database only on the basis of contractual clauses.

The conclusion of the ruling is that Articles 6(1), 8 and 15 of Directive 96/9 do not preclude the author of such a database which is not protected either by copyright or by the “sui generis” right under that directive from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.