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Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Thursday, 29 March 2012

Dutch court asks, "Can GasPedaal peddle Autotrack data?"

Earlier this week, in Innoweb BV v Wegener ICT Media BV, The Hague Court of Appeal asked nine questions of the Court of Justice of the European Union (CJEU) about how to interpret the provisions of the EU Database Directive protecting sui generis databases.  The IPKat is fortunate to have received the following explanatory note from Stephen Vousden, who has agreed to let the Kats share it with their readers.

"Wegener runs a website called AutoTrack. It is a car advert website the content of which changes daily. On any given day, up to 200,000 second-hand cars may be offered for sale. The sellers are private individuals, car showrooms or garages. Most of the adverts are however also available on other websites; only about 40,000 adverts are exclusive to Wegener's website. To help its online visitors find the right car, Wegener's website is furnished with a search engine.

Innoweb runs a website known as GasPedaal. Visitors to the GasPedaal website also use a search engine to find the car they want. GasPedaal's search engine is a 'dedicated meta search engine'. It is 'dedicated' in so far as it searches only through specific websites. And it is 'meta' in so far as it uses the search engine of the website to be searched.

One of the dedicated websites searched by GasPedaal's search engine is Wegener's AutoTrack website. Thus when a GasPedaal end-user types in a search command, GasPedaal's search engine translates that command into the search functionality appropriate for the dedicated website -- in this case, the AutoTrack website. AutoTrack's search engine then finds any relevant adverts and makse them available to the GasPedaal search engine. On receipt of the first page of relevant adverts (about 15), the GasPedaal search engine sorts and collates them with the other first pages that are sent by the other dedicated websites. The GasPedaal search engine notes any results common to the various dedicated websites and makes only a single result from them (showing the links to the various sources); and it also slims down the information to specific criteria including the model, year, price, and mileage. The GasPedaal search engine then builds a webpage of results, saves it for about 30 minutes on the server, and sends a copy of the results to GasPedaal's end-user. Of the 300 000 adverts taken from the various websites, GasPedaal only makes available to the user a very small amount of AutoTrack's database with every search command, the content of the data being determined by the search terms used by GasPedaal's end-user.

On a daily basis, about 100,000 search commands from GasPedaal pass through the AutoTrack website. Approximately 80% of the various combinations of make and model are searched through at least once, and the details of the searched adverts are made available to the end-user.

Wegener sought an injunction to stop what it claimed was GasPedaal's infringement of its sui generis database rights. While The Hague Court of Appeal assumed that Wegener's collection was a database within the meaning of Article 1(1)(a) of the Dutch Database Act it also assumed that
i. there was no extraction of the whole or a substantial part of the contents of Wegener's sui generis database within the meaning of Article 7(1) of the Directive; 
ii. the repeated extraction of insubstantial parts of the content of Wegener's sui generis database did not constitute an infringement for the purposes of Article 7(5) Directive; but that there was 
iii. a repeated re-utilisation of insubstantial parts of the contents of Wegener's sui generis database – the cumulative effect of which was that a substantial part of the contents of the database was made available to the various users of GasPedaal's search engine when taken together.
However, The Hague Court of Appeal was unsure how to apply EU law. In particular,
• in circumstances such as these, was there a re-utilisation of the whole or a substantial part of Wegener's database? 
• what did Article 7(5) mean when it used the word 'systematic'? 
• did the Article 7(5) prohibition not apply if only insubstantial parts of the content of the database were made available to individual users, notwithstanding that the cumulative effect of the repeated re-utilisation of insubstantial parts was that a substantial part of the contents of the database was made available to different users when taken together? 
• And what did the CJEU mean in Case C-203/02 British Horseracing Board v William Hill when it was interpreting Article 7(5), talking about unauthorised actions, and uttered the phrase in para 89: 'which thus seriously prejudice the investment made by the maker of the database' - was that the case here?
These doubts spurred The Hague Court of Appeal to ask no fewer than nine detailed Questions of the CJEU".
The IPKat has been wondering whether the first of these bullet points is a genuine quest for clarification of the law or a cunningly-disguised attempt to get the CJEU to make a finding of fact.

Merpel merely reflects on the sad reality that all the hard work that went into the drafting of the Database Directive was put in at a time when we knew what the internet was but had no idea what it was capable of.  If it had been drafted today, it is inconceivable that its recitals and substantive provisions would contain not a single reference (as is currently the case) to words such as "online", "internet", "search" or "download", and that its only reference to "computer" would to the effect that "database" should not be taken to include a "computer program" -- something that might not have been apparent in 1996 but which, today, is about as helpful as saying that "cheese" should not be taken to include "mouse".  Given the tortured reasoning that national courts and the CJEU have had to employ when applying Europe's harmonised law to facts that inconveniently never quite seem to fit it, Merpel hopes that a fit-for-purpose revision exercise will soon be on its way, followed by some clearer, simpler, more user-friendly legislation.

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