Judgment of the Court of Justice (Fifth Chamber), case C-762/19

The Court of Justice of the European Union (hereinafter, the “CJEU”) has issued a ruling in case C-762/19 concerning the prohibition on any third party to “extract” or “re-utilize”, without the maker’s permission, all or a substantial part of the contents of a database.

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The issue raised in the proceedings concerns the compatibility of the operation of a specialized search engine with the sui generis right contained in Directive 96/9, a matter that the Regional Court of Riga (Latvia) referred to the CJEU for a preliminary ruling in two questions which sought to determine, firstly, whether the display, in the list of results generated by a specialized search engine, of a hyperlink that redirects the user of that search engine to a website, provided by a third party, where the contents of a database of job advertisements can be consulted, falls within the definition of “re-utilization” set out in Article 7(2)(b) of Directive 96/9 and, secondly, whether the information from the meta tags of that website displayed by the search engine is to be interpreted as falling within the definition of “extraction” set out in Article 7(2)(a) of said Directive.

In order to answer these questions, we must first define the scope and purpose of the protection of the sui generis right. The purpose of the sui generis right is to ensure the protection of a substantial investment in the obtaining, verification or presentation of the contents of a database, granting the maker of the database the possibility of preventing the unauthorized extraction or re-utilization of all or a substantial part of the contents, so that the person who has taken the initiative and assumed the risk of making a substantial investment receives a return on his or her investment.

It is also important to note that pursuant to Article 7 of Directive 96/9, the protection of a database by the sui generis right is justified only if there has been quantitatively or qualitatively a substantial investment in the obtaining, verification or presentation of the contents of the database.

With regard to the criteria for concluding that an act by a user constitutes an “extraction” or “re-utilization” within the meaning of Directive 96/9, “extraction” is defined as “the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means and in any form”. As for “re-utilization”, it covers “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”. Both concepts must be interpreted as referring to any act of appropriating and making available to the public, without the consent of the maker of the database, the results of his or her investment, thus depriving him or her of revenue which should have enabled him or her to redeem the cost of that investment.

The search engine at issue in the proceedings makes it possible to simultaneously explore, by means other than that provided for by the maker of the database concerned, the entire content of several databases, including the plaintiff’s, by making that content available to its own users. By providing the possibility of searching several databases simultaneously, that specialized search engine gives users access, on its own website, to job advertisements contained in those third-party databases. Thus, users are provided with access to the entirety of the content of third-party databases by a means other than that provided for by the makers of those databases.

In the light of the above considerations, the answer to the questions referred for a preliminary ruling is that Article 7(1) and (2) of Directive 96/9 must be interpreted as meaning that an Internet search engine specializing in searching the contents of databases, which copies or indexes all or a substantial part of a database freely accessible on the Internet and then allows its users to search that database on its own website according to criteria relevant to its content, is “extracting” or “re-utilizing” that content within the meaning of that provision, which may be prohibited by the maker of such a database where those acts adversely affect its investment in the obtaining, verification or presentation of that content, namely, that they constitute a risk to the possibility of redeeming that investment through the normal operation of the database in question.

Author: Claudia Pérez Moneu

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