On 19 December 2013, the Court of Justice of the European Union (the "ECJ") issued a preliminary ruling after a referral by the Regional Court of The Hague relating to the sui generis database right.

Pursuant to 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 (the "Database Directive") the maker of a database may prevent the extraction or re-utilisation of the whole or of a substantial part of the contents of his database. Article 7(5) of the Database Directive also allows the database maker to prevent the re-utilisation or the extraction of insubstantial parts of the contents of his database if such re-utilisation or extraction is repeated and systematic, implying acts which conflict with a normal exploitation of that database or which unreasonably harm the legitimate interests of the database maker. Article 7(2)(b) of the Database Directive defines "re-utilisation" as (i) any form of making available to the public of a database (ii) by the distribution of copies, by renting, by online or other forms of transmission.

The proceedings leading to the preliminary questions concerned the database maker Wegener which provides customers with an online database of second-hand car advertisements, containing approximately 200,000 entries. Another company, Innoweb, ran a meta search engine for second-hand cars. Innoweb's meta search engine contained a search form, which allowed the end users to search on the basis of different criteria of the vehicle. It then "translated" queries from end users into the search engines of different databases, such as the Wegener database. In a next step, the search engine presented the results to the end user using the format of Innoweb's website. The meta search engine thus did not have its own search engine, but instead uses the search engines covered by the services it consults.

Wegener considered that Innoweb's meta search engine compromised its sui generis database right. Wegener successfully obtained a preliminary injunction from the Dutch courts. Innoweb appealed against the injunction to the Regional Court of Appeal of The Hague. Innoweb argued that it does not re-utilise the Wegener database, and although 80% of Wegener's database is searched daily by Innoweb, only a very small part of that data is actually displayed to the end user on the basis of the user's search.

The Regional Court of The Hague considered that there was no extraction of Wegener database, but requested the ECJ to issue a preliminary ruling on the meaning of a "re-utilisation" of a database.

The ECJ first distinguished the case at hand from The British Horseracing Board case in which it had determined that "if the database maker makes the contents of [a] database accessible to third parties, even if he does so for a consideration, his sui generis right does not enable him to prevent such third parties from consulting that database for information purposes" (The British Horseracing Board and Others [2004] ECR-10415, paragraph 53). The ECJ held that Innoweb's activity does not constitute a mere consultation of the Wegener database as Innoweb is not at all interested in the information stored on the database, but instead provides the end user with a form of access to that database.

Second, the ECJ considered whether Innoweb's activity re-utilises the Wegener database by making available the contents of the database to the public for the purposes of article 7(2)(b) of the Database Directive. The ECJ took the view that Innoweb's meta search engine "makes available" the Wegener database since "a search carried out by that meta engine throws up the same list of results as would have been obtained if separate searches had been carried out in each of those databases". The database is also made available to "the public", since anyone can use the meta search engine and the number of persons targeted is undetermined. Consequently, Innoweb re-utilises part of the contents of a database.

Finally, the ECJ determined that the re-utilisation must involve a substantial part of the contents of the database concerned. The ECJ held that the number of results actually found and displayed for every query is irrelevant. The fact that "only part of the database is actually consulted and displayed in no way detracts from the fact that the entire database is made available for the end user". The ECJ thus seems to have held that the making available relates to the data which are searched and is not limited to possible results that are displayed to the users. Based on the above considerations, the ECJ concluded that Innoweb re-utilises a substantial part of the Wegener database and thus infringes Article 7(1) of the Database Directive.

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