Keywords: web-scraping, database, unlawful, European Court, meta search engines
The European Court has recently given its judgment in a case relating to meta search engines which trawl through databases of car advertisements. The decision sheds light on how EU database right, which dates back to 1996, applies to modern day search engines in the internet advertising market – barely thought of 17 years ago – and looks at when repeatedly taking small amounts falls foul of that right.
The facts
The case relates to two competing websites which enable users to find second-hand cars being advertised for sale. Wegener's website is called AutoTrack, offering thousands of second-hand cars on a website, the contents of which change every day. Innoweb's site, GasPedaal, uses a dedicated meta search engine which searches third party sites, including AutoTrack, using those other sites' own search engines to track down adverts meeting the user's requirements, saves the selected results on its server and sends a copy to the user. In doing this, GasPedaal accesses some advertisements which were exclusive to AutoTrack. Of course, each end user only receives the results of the search commands he or she wanted but, taken cumulatively, GasPedaal's search engine carries out tens of thousands of searches on AutoTrack alone. Is that enough to infringe? When Wegener sued, the Dutch court thought no, but asked the European Court for clarification.
Legal background
Database right protects the investment made in bringing together and presenting a mass of data. The right is infringed where there has been extraction and/or reutilisation of the whole or substantial part of the contents of a protected database. "Extraction" means transferring database contents into another medium and "reutilisation" means making those contents available to the public, for example on-line.
Under the EU Database Directive, the "repeated and systematic extraction and/or reutilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted". In other words, taking "little and often" rather than in large chunks can still infringe.
The decision
The Court's judgment is good news for database creators as it suggests that the activities of meta search engines such as GasPedaal will infringe database right and so can be stopped. What is less clear is whether the decision is limited to that particular kind of search engine.
The case clearly relates to a dedicated meta search engine, which makes used of the underlying websites' own search engine, as opposed to a general search engine based on an algorithm. The Court noted that a dedicated meta search engine offers similar advantages to those of the underlying sites and allows the user to search in real time and to rank results. This meant thatt GasPedaal was akin to a parasitical competing product (a concept which is mentioned in the Directive).
Next, the Court had to consider whether Innoweb itself, rather than its users, was carrying out infringing activities, even though each search is done automatically. Innoweb would be infringing in its own right if making GasPedaal available amounted to "reutilisation" of a substantial part of AutoTrack. The Court said that the definition of reutilisation (particularly the idea of "making available") had to be given a wide meaning, in line with the whole purpose of database right, namely the promotion of the creation of data storage and processing systems to help boost the information economy. It followed that "making available" occurred where the database owner (Wegener) was being deprived of revenues which it would have used to recoup its investment. Here, Wegener risked losing ad revenues if GasPedaal users could bypass its homepage, or if they bought cars from other sites where the ad was not exclusive to AutoTrack.
These factors all pointed in favour of database right being infringed. Whilst the Court's findings specifically relate to this kind of meta search engine (one which gives the user essentially the same range of functionality as that on the underlying site, does searches in real time, blocks duplicated results and allows the user to rank the output), the tenor of the judgment indicates that other "parasitical" web scraping of protected content will also be against the law in Europe.
Originally published 7 January 2014
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