The Court of Justice centers the database right around the question of the substantial investment of the maker of the database and the risk that that investment may not be redeemed.
For a long time, sui generis database rights were not on the agenda of the CJEU. On 3 June 2021 in CV-Online v. Melons C-762/19 the Court of Justice issued a new decision on this topic, reiterating and reinforcing the principles of this special protection mechanism.
CV-Online, a Latvian company, operates the website www.cv.lv. That website includes a database, developed and regularly updated by CV-Online, containing job advertisements published by employers. The website is also equipped with meta tags of the ‘microdata’ type. Those tags, which are not visible when the CV-Online web page is opened, allow internet search engines to better identify the content of each page in order to index it correctly. In the case of CV-Online’s website, those meta tags contain, for each job advertisement in the database, the following key words: ‘job title’, ‘name of the undertaking’, ‘place of employment’ and ‘date of publication of the notice’.
Melons, also a Latvian company, operates the website www.kurdarbs.lv, which is a search engine specialising in job advertisements. That search engine makes it possible to carry out a search on several websites containing job advertisements, according to various criteria, including the type of job and the place of employment.
By means of hyperlinks, the website www.kurdarbs.lv refers users to the websites on which the information sought was initially published, including CV-Online’s website. By clicking on such a link, the user can, inter alia, access the website www.cv.lv, in order to become acquainted with that website and the entirety of its contents. The selection of job advertisements to which the hyperlinks refer is made using the specialised search engine provided by Melons.
That search engine indexes and copies on its own server the content of websites with job advertisements, such as the ‘www.cv.lv’ website, and then allows searches to be made of that indexed content according to criteria such as the nature of the job and the place of employment. The information contained in the meta tags inserted by CV-Online in the programming of its website is also displayed in the list of results obtained when using the specialised search engine of Melons.
The purpose of the sui generis database right is to ensure that the person who has taken the risk of making a substantial investment in terms of human, technical and/or financial resources receives a return on his or her investment by protecting him or her against the unauthorised appropriation of the results of that investment.
The Court of Justice therefore starts with reminding that protection of a database is justified only if there has been a substantial investment, qualitatively and/or quantitatively, in the obtaining, verification or presentation of the contents of that database.
Investment in the obtaining of the contents of a database concerns the resources used to seek out existing independent materials and collect them in the database, and not the resources used for the creation as such of independent materials. Next, investment in the verification of the contents of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. Lastly, investment in the presentation of the contents of the database includes the means of giving that database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility.
Infringement takes place when a third party ‘extracts’ and/or ‘re-utilises’ contents of the database without the consent of the maker. ‘Extraction’ and ‘re-utilisation’ are interpreted broadly, ‘extraction’ being ‘the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form’ and ‘re-utilisation’ covering ‘any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission’.
When assessing infringement it is necessary according to the Court of Justice to strike a fair balance between, on the one hand, the legitimate interest of the makers of databases in being able to redeem their substantial investment and, on the other hand, that of users and competitors of those makers in having access to the information contained in those databases and the possibility of creating innovative products based on that information. It should thereby be borne in mind that content aggregators, such as Melons, contribute to the creation and distribution of products and services with added value in the information sector. By offering their users a unified interface enabling them to search several databases according to criteria relevant to their content, they allow the information on the internet to be better structured and to be searched more efficiently. They also contribute to the smooth functioning of competition and to the transparency of offers and prices.
In the present case, Melons’ search engine makes it possible to explore all the data contained in the databases freely accessible on the internet, including CV-Online’s website, and provides its users with access to the entirety of the content of those databases by a means other than that provided for by the maker of those databases. Anyone at all can use such a search engine. Moreover, by indexing and copying the content of the websites on its own server, Melons’ search engine transfers the content of the databases that comprise those websites to another medium.
These acts constitute measures of extraction and re-utilisation of the database that are to be prohibited provided, however, that they have the effect of depriving the maker of the database of income intended to enable him/her to redeem the cost of his/her investment. It follows that the main criterion for balancing the legitimate interests at stake must be the potential risk to the substantial investment of the maker of the database concerned, namely the risk that that investment may not be redeemed.
The decision of the Court of Justice takes a pragmatic approach, centring the database right around the question of the substantial investment of the maker of the database and the risk that that investment may not be redeemed.
This leaves an important role to the national courts to ascertain, on the basis of the guidelines given by the Court of Justice, whether the obtaining, verification or presentation of the contents of a database amounts to a substantial investment, and, if so, whether the extraction or re-utilisation constitutes a risk to the possibility of redeeming that investment.
7 July 2021