On 19 December 2013, the Court of Justice of the European Union gave its answers to a reference from the Gerechtshof te ‘s?Gravenhage (Netherlands) in Case C?202/12 Innoweb BV v Wegener ICT Media BV and Wegener Mediaventions BV.
The dispute concerns Innoweb’s operation, through its web site, of a ‘dedicated meta search engine’ that enables searches to be carried out on third party web sites and, in particular, on Wegener’s web site, where a collection of car sales advertisements (‘car ads’) is displayed. The question was whether this amounted to a breach of the Wegener database right, although the Dutch court managed to make the questions somewhat longer (see below).
A ‘meta search engine’ uses search engines from other web sites, transferring queries from its users to those other search engines – a feature which differentiates meta search engines from general search engines such as Google. A meta search engine described as ‘dedicated’ is designed to enable searches to be made in one or more specific subject areas. Innoweb’s GasPedaal is such a dedicated meta search engine, designed to search for car ads: through a single query on GasPedaal, the user can simultaneously carry out searches of several collections of car ads listed on third party sites, including the AutoTrack web site of Wegener. GasPedaal carries out approximately 100,000 searches on the AutoTrack web site every day.
Wegener were successful in their claim at first instance but Innoweb appealed. On appeal, the Gerechtshof te ‘s-Gravenhage decided to stay the proceedings to refer the following questions to the Court for a preliminary ruling:
‘(1) Is Article 7(1) of Directive [96/9] to be interpreted as meaning that the whole or a qualitatively or quantitatively substantial part of the contents of a database offered on a website (on line) is re-utilised (made available) by a third party if that third party makes it possible for the public to search the whole contents of the database or a substantial part thereof in real time with the aid of a dedicated meta search engine provided by that third party, by means of a query entered by a user in “translated” form into the search engine of the website on which the database is offered?
(2) If not, is the situation different if, after receiving the results of the query, the third party sends to or displays for each user a very small part of the contents of the database in the format of his own website?
(3) Is it relevant to the answers to Questions 1 and 2 that the third party undertakes those activities continuously and, with the aid of its search engine, responds daily to a total of 100 000 queries received from users in “translated” form and makes available the results thereof to various users in a manner such as that described above?
(4) Is Article 7(5) of Directive [96/9] to be interpreted as meaning that the repeated and systematic re-utilisation of insubstantial parts of the contents of the database which conflicts with normal exploitation or unreasonably harms the legitimate interests of the database maker is not permissible, or is it sufficient for there to be repeated or systematic re-utilisation?
(5) If repeated and systematic re-utilisation is a requirement,
(a) what does “systematic” mean?
(b) is re-utilisation systematic when an automated system is used?
(c) is it relevant that a dedicated meta search engine is used in the manner described above?
(6) Is Article 7(5) of Directive [96/9] to be interpreted as meaning that the prohibition laid down thereunder does not apply if a third party repeatedly makes available to individual users of a meta search engine belonging to that third party only insubstantial parts of the contents of the database in response to each query?
(7) If so, does that also apply if the cumulative effect of the repeated re-utilisation of those insubstantial parts is that a substantial part of the contents of the database is made available to the individual users together?
(8) Is Article 7(5) of Directive [96/9] to be interpreted as meaning that, if conduct which has not been approved and which is such that, as a result of the cumulative effect of re-utilisation, the whole or a substantial part of the contents of a protected database is made available to the public, the requirements of that provision are satisfied, or must it also be claimed and proved that those acts conflict with the normal exploitation of the database or unreasonably harm the legitimate interests of the database maker?
(9) Is it assumed that the investment of the database maker is seriously harmed in the event of the aforementioned conduct?’
The Fifth Chamber took the view that the Innoweb search engine did indeed breach the Wegener rights. The Court considered that it was not necessary to address questions 4 to 9 and formally ruled as follows:
Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that an operator who makes available on the Internet a dedicated meta search engine such as that at issue in the main proceedings re-utilises the whole or a substantial part of the contents of a database protected under Article 7, where that dedicated meta engine:
– provides the end user with a search form which essentially offers the same range of functionality as the search form on the database site;
– ‘translates’ queries from end users into the search engine for the database site ‘in real time’, so that all the information on that database is searched through; and
– presents the results to the end user using the format of its website, grouping duplications together into a single block item but in an order that reflects criteria comparable to those used by the search engine of the database site concerned for presenting results.
The full judgment can be read here.
