Perttu Virtanen[1]
Cite
as Virtanen P., “Innoweb v Wegener: CJEU, Sui Generis database
right and making
available to the public – The war against the machines”, in
European Journal of
Law and Technology, Vol 5, No 2, 2014.
Wegener
ICT Media BV and Wegener Mediaventions BV (collectively Wegener)
provide in the
Netherlands through the website www.autotrack.nl
(Autotrack) an online access to daily updated 190-200,000 used car
sales
advertisements, of which 40,000 are available only via Autotrack. The
website
has its own search function and it displays also other advertisements
as
supplementary means of accruing income. Innoweb
BV (Innoweb) has built a meta search
engine “GasPedaal” providing a single-query access to
several other websites
displaying used cars sales advertisements Autotrack being one of the
sites
containing them. According to further search criteria such as price,
make,
model mileage, manufacturing year and others, one can make a further
refined search
with a single query yielding results from several other websites
together with
links to those other websites. As a result of GasPedaal’s
popularity, the users’
searches cause GasPedaal web crawler carry out some 100,000 searches
daily in
Wegener’s Autotrack site, among other used car sales databases.
Wegener,
upon finding this, sued successfully in the Dutch trial court Innoweb
for
database sui generis right
infringement and on appeal lodged by the Innoweb the appellate court
stayed the
proceedings and referred the case for a preliminary ruling to the Court
of
Justice of the European Union (CJEU) concerning several aspects on the
interpretation of the EC Database Directive 96/9 (the Directive or
Database Directive).[2]
The first 3 questions of the 9 altogether are repeated here:
(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
(online) 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?
First,
looking into technology underlying the dispute, the CJEU held that the
essential
features of a dedicated meta search engine and its operation clearly
distinguish it from a general search engine like Google or Yahoo. A
dedicated
meta search engine does not have its own search engine scanning other
websites.
Instead, the meta search engine makes use of the search engines on the
websites
covered by its service. The dedicated meta search engine enters its
users’
queries into other search engines to have the data on those databases
searched
through.[3]
A dedicated meta search engine offers advantages in the formulation of
a query
and the presentation of the results, whilst making it possible to use a
single
query to search several databases. Often a more refined or targeted
search is
available and/or the subsequent result list can be modified to better
suit the
needs of a user.
Second,
in legal appraisal of Database Directive Article 7(1) the
characterisation, concerning
the activity of the operator of a dedicated meta search engine first
concerns
the offer, made to the public by that operator, to make it possible
– by means
of a dedicated meta search engine – to search the entire contents
of a database
or a substantial part thereof ‘in real time’, by entering
an end user’s query,
in ‘translated’ form, in the search engine of the database.
The search
undertaken by the dedicated meta search engine in response to a query
together
with the presentation of the results to the end user takes place
automatically,
in accordance with the way in which the meta search engine has been
programmed
without any intervention on the part of the operator at that stage.
Then the only
person carrying out an activity is the end user who enters his query.
The
operations of meta search engine maker or operator consist of making a
dedicated meta search engine available on the Internet for
‘translating’
queries typed into that meta search engine by end user subsequently
into the
search engines of the databases covered by the service of the meta
search
engine in question.[4]
Third,
decisive is whether that activity falls within the scope of Article
7(1) of the
Directive. Accordingly, it must constitute ‘re-utilisation’
for the purposes of
Article 7(2)(b) and must involve all or a substantial part of the
contents of the
database concerned. Re-utilisation for
the purposes of Article 7(2)(b) of the database directive is defined as
‘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
online or
other forms of transmission’. The phrase ‘any form of making
available to the public’ indicates that the Community legislature
attributed a
broad meaning to re-utilisation supported by the objective pursued by
the
Community legislature through the establishment of a sui generis
right,
namely to stimulate the establishment of data storage and processing
systems
which contribute to the development of an information market. Sui
generis
right under database directive intends to ensure that the maker of a
substantial investment in the setting up and operation of a database
receives a
return for investment by protecting him against the unauthorised
appropriation
of the results of that investment. The second part of the definition
given in
Article 7(2)(b) of the directive ‘by the distribution of copies,
by renting, by
on-line or other forms of transmission’ – in particular,
the alternative ‘or
other forms’ also make it possible to construe that definition
broadly.[5]
If
one makes available on the Internet a dedicated meta search engine,
such as
that in present issue, it translates queries into the search engines of
the
databases covered by the service of the meta search engine in question.
Accordingly such an activity would not be limited to indicating to the
user
databases providing information on a particular subject. The purpose of
a meta
search engine is to provide an end user with a means of searching all
the data
in a protected database and to provide access to the contents of that
database
by a means other than that intended by the maker of that database,
whilst using
the database’s search engine and offering the same advantages as
the database
itself in terms of searches. The end user no longer has any need, when
researching data, to go to the website of the database concerned, or to
its
homepage, or its search form, in order to consult that database. The
activity
on the part of the operator of a dedicated meta search engine, such as
that at
issue in the main proceedings, creates a risk that the database maker
will lose
income, in particular the income from advertising on his website,
thereby
depriving that maker of revenue which should have enabled him to redeem
the
cost of the investment in setting up and operating the database. Since
the end
user no longer has any need to proceed via the database site’s
homepage and
search form, it is possible that the maker of that database will
generate less
income from the advertising displayed on that homepage or on the search
form,
especially to the extent that it might seem more profitable for
operators
wishing to place advertisements online to do so on the website of the
dedicated
meta search engine, rather than on one of the database sites covered by
that
meta engine.[6]
The
protection under Article 7 of Database Directive does not cover
consultation of
a database. However, the activity of the operator of a dedicated meta
search
engine does not constitute consultation of the database concerned. The
operator
of meta search engine is not at all interested in the information
stored in the
database, but he or she provides the end user with an access to that
database information
which is different from the access route intended by the database
maker. It is
the end user keying in a query in the dedicated meta search engine who
consults
the database via meta search engine. The relevant aspect of the
activity of the
operator of a dedicated meta search engine comes close to the
manufacture of a
parasitical competing product, albeit without copying the information
stored in
the database concerned. A dedicated meta search engine, taking into
account its
search options, resembles a database, but without having any data
itself.
It
follows from the foregoing considerations that the act on the part of
the
operator of making available on the Internet a dedicated meta search
engine
such as that at issue in the main proceedings, into which it is
intended that
end users will key in queries for ‘translation’ into the
search engine of a
protected database, constitutes ‘making available’ the
contents of that
database for the purposes of Article 7(2)(b) of Directive 96/9. The
‘making
available’ is for ‘the public’, since anyone at all
can use a dedicated meta
search engine and the number of persons thus targeted is indeterminate,
the
question of how many persons actually use the dedicated meta engine
being a
separate issue. In the light of the answers to first 3 questions the CJEU
found it not necessary to reply to subsequent questions 4 to 9.[7]
As
the CJEU itself put it aptly:
The questions are
essentially intended to ascertain whether the operator of a dedicated
meta
search engine such as that at issue in the main proceedings engages in
an
activity covered by Article 7(1) or Article 7(5) of Directive 96/9,
with the
consequence that the maker of a database which meets the criteria laid
down in
Article 7(1) may prevent that database from being included, for no
consideration, in the service of the dedicated meta search engine.[8]
To
sum the answer up, the CJEU concluded: 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.[9]
In
other words, the meta search engine, in the opinion of the CJEU, makes
available to the public the whole or substantial parts of the database
openly
accessible in the website of the rightholder through its own search
facility. Perhaps
the main part of the Court’s reasoning for finding the factual
basis for
infringement goes:
It is sufficient
for the end user to go to the website of the dedicated meta search
engine in
order to gain simultaneous access to the contents of all the databases
covered
by the service of that meta engine, as 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 which,
however, are
presented using the format of the dedicated meta engine’s
website. The end user
no longer has to go to the website of the database, unless he finds
amongst the
results displayed an advertisement about which he wishes to know the
details.
However, in that case, he is directly routed to the advertisement
itself and,
because duplicate results are grouped together, it is even entirely
possible
that he will consult that advertisement on another database site.[10]
The
underlying reasons are then that its functions come close to
parasitical
competition, to be found from recital 42, which may make database maker
lose income
particularly in the form of income accrued through navigation in the
form of
adverts posted in the homepage and search form. It may very well be so
that an
individual website with its underlying database may face competition
from meta
search engines and other competing websites, amongst others. However,
competition is generally regarded as a good thing. Only if it is
parasitical,
it may be frowned upon by primarily competition law, understood
broadly,
involving what in some countries is categorized as unfair business
practices or
unfair trading. Naturally, it has to be parasitical,
coming close does not qualify and the same can be derived from the
recital
mentioned. In the initial proposal for the Database Directive it was
exactly unfair
extraction, or re-utilization for commercial purposes, that was
infringing the sui generis right but that was dropped
during the legislative passage.[11]
The reasoning given is not convincing in this part and does not rhyme
with the
law as it stands. Consequently, losing income in the face of
competition is not
forbidden provided the competitor does not infringe the relevant law in
question, this time the database sui
generis right.
And
the claim of directly only losing income in the presence of meta search
engines
is not necessarily valid in its entirety either: may people navigate to
these
specific services and underlying databases such as Autotrack in this
case only
after finding them by means of a general or
dedicated meta search engine or after skimming their search
results, using
then also their start sites and dedicated search facilities. E contrario, the services like the one
provided by the claimant in the case, may and often also actually
benefit from
dedicated meta search engines, since they also help users locate the
relevant
services and give initial results as to whether a specific search by
means of
that particular service is interesting or useful for their purposes.
Both
general and dedicated search engines, including meta search facilities,
can be
a mixed curse or blessing and their impact eventually depends on many
factual
circumstances tied to the individual case. Thus, in
the real world of web usage this kind of
statement found from the reasoning is too general and vague to have any
real
power in actual circumstances of the case.
As
such there is little wrong with grounds mentioned as part of the
reasoning
provided they stand the factual scrutiny mentioned above. However, a
pivotal
point is that in order to be infringing, the activity has to not only
to go
against the circumstances and motivations mentioned in the recitals but
rather
directly satisfy the criteria set out in the articles for instituting
infringement. Other than that, the reasoning confuses the ends
mentioned in the
recitals and the means provided by the effective articles. Accordingly,
in
order to infringe the meta search engine provider’s activity has
to violate the
exclusive right of re-utilisation in question, further described as the
right
of making available to the public. And the further criterion for making
available to the public pursuant to Database Directive is found indeed
in Article
7 (2)(b): you make the database or substantial part thereof available
to the
public by the distribution of copies, by renting or by on-line or other
forms
of transmission. This formulation alone suffices to convey that the
exclusive
right is fashioned broadly. How the Court found an infringement in this
respect, will be reflected below.
For
purposes of further legal analysis, a quick look deeper into the
technology
underlying the dispute would be useful. A meta
search engine (MSE) is a search tool that
sends user requests to several other search engines and/or databases
and
aggregates the results into a single list or alternatively displays
them
according to their source, sometimes providing further information on
search
results together with links to original databases or search facilities.[12]
Thus, it enables users to enter search criteria once and access several
search
engines simultaneously. MSEs were devised because
the extraordinary growth
of the amount of information available both in stored form as well as
in
real-time via Internet and the ever-increasing number of users
necessitated a
broader variety and more efficient search technologies for differing
purposes. Accordingly,
an enhanced information retrieval has become indispensable and meta
search
engines are, together with search engines, web directories and deep-web
search
portals, researched and developed to address the challenges posed by
the volume
of information and needs of users.[13] The data provided by an individual specific
search
engine or its underlying database may be initially limited by design
parameters
while a general search engine, however good, often provides amongst the
search
results hits that are not relevant for a subject-specific search or it
displays
the results in a form not so informative or comparable with results
from other
search engines. The features provided by a meta search engine may save
the user
from having to use multiple search engines separately. MSEs create a
so-called
virtual database since they don’t use their own web crawlers and
index the data,
thus compiling a physical database of the information collected
from the
web. Instead, they take a user request, submit it to several other
search
engines and databases making a federated search and then compile the
results in
a homogeneous format.
This,
like other operations of the MSEs, are based on a
specific algorithm/s
which may require intense investment both in labour and skills of
developers
and then further work and development in implementation into executable
code. The
first meta search engines were introduced in mid-1990’s and their
usage has
increased in popularity, thanks to the benefits they potentially bestow
on
users, for example in the form of
more up-to-date, broader or alternatively better directed searches.
Some MSEs are
actually dedicated to specific searches as in the current case.
Further, they
may present results often in a more
user-friendly
or informative format than individual sites’ search engines or
general search
engines yield. Rather than being one homogenous group of search
engines, meta
search is thus one of the relatively new technologies facilitating
better
searches over the Internet and also “general” search
engines may use it as
their search technology.[14]
Accordingly, making the binary distinction between them and general
search
engines is artificial and partly incorrect. Rather it is the extent and
format
of how the data is used and presented from original sources with
referencing
method thereto that is crucial in appraising the conformity with sui generis right that could be the
pivotal criterion instead, it is suggested. And this, in the main,
applies to
both general and more specific search engines, whether they employ or
provide meta
search as part of their functionality or not.
Given
their popularity and diverse usage, usually no two meta search engines
are
alike but they differ broadly in functionality and their further
development is
consequently one of the subjects of further research and development in
computer science and software engineering, facilitating the production
and
commerce in these information products and services. While this is the
global
tendency, the current CJEU ruling appears to suggest that better
information
search tools like meta search engines possibly as a genus
are illegal in Europe provided they can be characterized as CJEU
did in its conclusion.[15]
Perhaps this is the practical realization of the fostering of research
and
innovation that is supposed to be so central in the IP policy of the
European
Union? As mentioned above and as a matter of course, given the variety
of the
approaches and methods employed by MSEs, some may utilize the data
provided by
results to queries from other search engines and databases in a manner
that may
be close or amount to parasitical competition or close to the act of
unlicensed
making available to the public. However it is upon the individual
circumstances
of the case to determine this rather than make a generalized conclusion
based
on search facility tagged as a meta search engine.
As
mentioned supra, the court found the
MSE making a substantial part of the database available for the public.
The act
on the part of the operator of making available on the Internet a
dedicated
meta search engine such as that at issue in the main proceedings, into
which it
is intended that end users will key in queries for
‘translation’ into the
search engine of a protected database, constitutes ‘making
available’ the
contents of that database for the purposes of Database Directive. The
making
available is for the public, since anyone at all can use a dedicated
meta
search engine and the number of persons thus targeted is indeterminate,
the
question of how many persons actually use the dedicated meta engine
being a
separate issue. Consequently, the operator of a dedicated meta search
engine
such as that at issue in the main proceedings re-utilises part of the
contents
of a database for the purposes of Database Directive.[16]
Besides
the case-by-case based approach, another even more unconventional train
of
thought is yet open for debate to counterbalance the reasoning in this
respect.
Much of the legal assessment on the operation of a MSE may depend on
the
initial terms and technological constrains imposed by another search
engine or underlying
database that the federated search uses as its source. This is the
freedom of
rightholder of a database and it is her/his liberty to choose whether
and how
he makes the database open for public “consultation”.
Provided the initial
database owner has granted an unrestricted access for queries made by
users
through a search engine, a MSE does not make the initial database
available to
any new public. The database is already available to that same public
by same
means of transmission, Internet,[17]
and the MSE is by no means channeling or disseminating the same
database or a
substantial part thereof to anyone constituting a new public in
reality.
Instead,
it provides via a website to individual web users the software tool to
make initial
queries on the same subject through an alternative, often more
efficient search
engine not limited to that particular
website claiming infringement and, absent any further extraction or
utilisation
of information from the database other than assented by the rightholder
initially[18],
works for the same purposes as a general search engine using crawlers
but
without extracting the data, providing also access to initial databases
and
this is what users predominantly do. A user, after a query and
receiving the
search results, may then, upon finding the relevant websites and a
varying
degree of data from information available in that website to judge
their relevance,
refer to a particular website and its own search engine or not,
depending on
how relevant the initial search results by the MSE appear. And a MSE
faces
often the competition from other dedicated and general search engines
or
dedicated websites with their search facilities, depending on a number
of
factors affecting the web users preferences which may all vary. A
parallel
reasoning of non-existence of new public for the communication to the
public
right and consequently non-infringement was employed only recently by
the CJEU
concerning copyright context in Svensson case concerning hyperlinks,[19]
and one may ask whether there are sufficient grounds to distinguish the
making
available to the public right in sui
generis context from communication to the public in the area of
copyright and
treat it differently there, bearing in mind that in EU copyright making
available to the public is one subcategory of communication to the
public while
Database Directive operates with making available to the public as the
broad
overall concept lending substance to right of re-utilisation.[20]
Interestingly, the underlying arguments for finding infringement in
Internet
hyperlinking cases in several Member States Court decisions have been
parallel
to losing revenue by going directly to relevant sites instead of
rightholder’s
start sites as the case was partly in recent dispute.[21]
In
recent case, the court was quick to note that the activity of the
operator of a
dedicated meta search engine such as that at issue in the main
proceedings does
not constitute consultation of the database concerned. That operator is
not at
all interested in the information stored in that database, but he
provides the
end user with a form of access to that database and to that information
which
is different from the access route intended by the database maker,
whilst
providing the same advantages in terms of searches. By contrast, it is the end user
keying in a
query in the dedicated meta search engine who consults the database by
means of
that meta search engine. [22]
Indeed, as it was mentioned above, it is exactly and still the end user
that
consults the database and not the
operator of a MSE, while the database right holder made the information
available over the Internet for users. Maybe the website operators have
never
heard of search engines used for finding the relevant websites and the
information therein in the first place? They rather would prefer to
keep hidden
in the web, users not finding them?
E contrario, should
one find for infringement for MSE categorically, the reasons given for
potential infringement apply, in the main, with equal force to
“general”, or
rather web crawler and indexing-based, data-storing search engines as
for
utilization or making available to the public of information. Maybe, in
the
reasoning extant in the recent judgment, germinates the seeds of making
a well
argued case against all search engines? Making the distinction between
a MSE
and a general search engine is apples to oranges, while the apposite
technological couples, if one prefers simplified dichotomies, are
either
general or specific search engines on one hand and meta search
technology or
crawler based, indexing searches on the other. As suggested, such
binary
distinctions may work generally but can be oversimplifications in
individual
cases. If the underlying technological solutions present are not
accurately
presented in a given case, the consequent legal analysis faces the risk
of
being concomitantly off-center.
The
remaining and valid issue is what to do with the case where a competing
service
is indeed running a similar service using the resources from the
initial
website and underlying database, disguised as a (meta) search engine.
The
answer is twofold and already suggested above. First, there is the
possibility
available for resorting to relevant competition law, understood broadly
as
described supra. If the EU as a body
politic has chosen not to harmonise the now relevant aspects of unfair
competition
law, it does not mean that the Member States’ domestic provisions
are not
available.[23]
The owner of a database and operator of a website is not left without a
remedy
in a business dispute like this, and unfair competition law is best
suited to
address the intricacies and minutiae of each given case, the profit
making
nature of activities concerned belonging inherently to this domain.
Second,
there exists the possibility of the unavoidably difficult determination
on
possible sui generis infringement
based on individual circumstances. The need for such a remedy is
accentuated in
occurrences when the case does not, to put it broadly, concern a
business
dispute. If it is obvious that the MSE emulates the database in
question and
provides exactly the same data without any meaningful reduction in the
amount, there
could exist an infringement of Article 7(5), tailored initially to
prevent
circumvention of article 7(2) by repeated and systematic
extraction/re-utilisation of insubstantial parts of the database,
provided the
other requirements thereof are met, discussed also supra.
Importantly, Article 7(5) provides that mere repeated or
systematic re-utilisation does not suffice alone, but it has to unreasonably prejudice the legitimate
interests of the maker
of the database. Instead of routinely adding these further requirements
as part
of reasoning, they could be applied as it was initially projected and
apply paragraph
5 in circumstances described above, and only when the acts in question
unreasonably
prejudice the interests of the database maker.
As
one can appreciate, the case is a showcase for several complex and
critical IP
issues existing in the Internet and there are many alternative
approaches as to
how the law should treat them. Perhaps even more importantly, rather
than
finding the sole right solution that does not necessarily exist, at
least a clarification
that is transparent in reasoning with regard to actual technological
environment
and also in harmony with other CJEU solutions on the matter is
desirable. [24]
One can easily claim that this is a system failure since there should
be
specific provisions for search engines as for copyright and related
rights like
sui generis right.[25]
It is problematic to say whether in individual cases the
decision-making
would be easier although at least such provisions at general level
would make
it clear that while protecting the investment in databases is a
worthwhile goal
as such, so is the investment and effort in creating better and more
efficient
web technologies such as ones improving searches, and neither should be
protected at the expense of other without solid grounds for it.
Recognizing the
importance and difficulties related to these cases, it is slightly
surprising
that the Advocate General (AG) did not deliver his opinion in this case
and the
Svensson case was also decided
without the opinion of the AG. While the CJEU does not give reasons as
to why
there was no need to have a separate AG’s opinion, they would
arguably have
been potentially quite useful for the further clarification and
development of
law in the field.
[1] The
author is solely responsible for any errors or omissions. All
comments and corrections are welcome. The word “machine”
used in the title is generally a device which converts any available
form of
energy into useful work while as engine is a device which converts
thermal
energy into useful work. Owing to the development of technology and
applications like “search engines” the line has become
blurred and machine is
used inaccurately as a synonym for a (search) engine to enable the
reference to
popular culture in this context.
[2] Innoweb BV v Wegener ICT Media
BV, Wegener Mediaventions BV, C-202/12, ECJ 19 December 2013 (Innoweb v Wegener).
[3] Innoweb v Wegener, para 25 of
the judgment.
[4] Para
29 of the judgment.
[5] Para
38 of the judgment.
[6] Para
42 of the judgment.
[7] Para
54 of the judgment.
[8] Para
19 of the judgment.
[9]
Judgment, conclusion.
[10] Para
49 of the judgment.
[11]
Proposal for a Council Directive on the legal protection of databases
COM(92) 24 final-SYN 393 (92/C 156/03) , Article 2(5).
[12] A
useful and concise but yet generally accurate definition for meta
search engines can be found readily e.g. from Wikipedia. A good further
introduction can be found from W. Meng: Metasearch Engines, in L. Liu
– M.T.
Özsu (eds): Encyclopaedia of Database Systems, Springer US, 2009,
p. 1730-1734.
[13] M.
Manoj – E. Jacob: Information retrieval on Internet using
meta-search engines: A review [2008] 67 Journal of Scientific &
Industrial
Research, p. 739-40.
[14]
Dogpile meta search engine serves as an example of this: http://www.dogpile.com/
[15] The issue
pivots on how extensive reading is given on threefold criteria in the
judgment
that are broad and potentially cover the majority of MSEs. In the light
of
domestic courts previously applying the criteria laid out broadly by
the ECJ in
the area of Database Directive interpretation, the prospects for
further
possible confusion are extant. See e.g. P. Virtanen: Poem title list
III – A
little database outro [2011] 2 European Journal of Law and Technology
2, at: http://ejlt.org/article/view/73
[16]
Judgment paras 50-52.
[17]
There is a string of ECJ cases touching on the ”new public”
in the
context of Copyright Directive 2001/29 and communication to the public,
including references to earlier case-law; See e.g. ITV&
others v TV Catchup C-607/11 7 March 2013, concerning
streaming of broadcasts.
[18] A
separate but yet useful parallel discourse on implied license as a
legal construct for assent in hyperlinking context can be found in:
e.g. T.
Pihlajarinne: Setting the limits for Implied license in Copyright and
Linking
Discourse – The European Perspective [2012] 43 IIC international
review of
intellectual property and competition law, p.700-710.
[19] Svensson et al v Retriever
Sverige Ab, C-466/12, ECJ 13 February 2014, paras 24-32 referring
to
previous case-law; It remains to be seen whether this approach will be
revisited or not. At the time of writing there are cases pending before
the
ECJ, C-279/13 C
More Entertainment AB B v Linus
Sandberg and C-348/13 BestWater.
See also: E. Arezzo: Hyperlinks and Making Available Right in the
European
Union: What Future for the Internet after Svensson? 4 March 2014, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2404250 (working paper series).
[20] The
making available appears as a subcategory for communication to the
public in WCT 1996 Article 8 and Copyright Directive 2001/29 Article 3.
Recitals 23 and 24 of the Copyright Directive further clarify the
relation
while the Database Directive operates only with making available right,
rendering
the comparison somewhat problematic.
[21]
Amongst several cases perhaps a prominent and apposite one is the Paperboy judgment from Federal Court of
Justice of Germany (Bundesgerichtshof), since the case concerned inter alia the alleged infringement of
database rights by means of deep linking: BGH 17 July 2003, Az. I ZR
259/00. Further references to domestic case-law and
literature on the subject can be found from Arezzo’s paper
mentioned in
footnote 17. See also P. Virtanen: Evolution, Practice and Theory of
European
Database IP Law, Acta Universitatis
Lappanrantaensis 303, 2008, p.231-243.
[22]
Judgment, para 47.
[23] On
development of unfair competition law in the EU, see e.g. C. Wadlow:
Unfair Competition in Community Law, Parts 1 and 2, in [2006] E.I.P.R 8
and 9,
p. 443-444 and 469-473 respectively. The Paperboy
case mentioned in footnote 19 is again useful as an instance, since
the
case concerned also the alleged infringement of German unfair
competition law
provisions besides (both) database rights. It is of course possible
that a
Member State has not adopted measures to this effect or a remedy is
otherwise
absent. This may reinvigorate the issue either in broader, domestic or
EU
context.
[24] Another
underlying and related but broader question is whether the right of
making
available to the public is infringed merely by offering the work to the
public
or does it require the subsequent accessing the work as well,
particularly in
copyright context. While neither the WCT nor Copyright Directive
expressly
provide for what is the correct understanding, several copyright and
related
rights organizations strongly lobby for the first, broader option for
understandable reasons: It does grant a vastly broader right and as a
corollary
the possibility to seek injunction for mere uploading a probably
infringing
work or material covered by the right and possible takedown/blocking
measures.
ECJ has taken a stance that appears to be parallel to this, exempli
gratia in Rafael Hoteles, C-306/05, 7 December
2006. The question on the
reach of the right does transpire merely European borders since the
debate in
2013-4 on amending the U.S. Copyright Act revolves heatedly around the
point
whether to grant expressly a making available to the public right in
the form
of making mere offering to the public infringing without subsequent
transmission; many experts find that such provision has not been
necessary to
protect the works and other related materials online while there is a
strong
support for the opposite view too. See e.g. The Copyright Office
hosting on 5
May 2014 a public roundtable discussion on the state of U.S. law
recognizing
and protecting “making available” and “communication
to the public” rights for
copyright holders, at: http://www.copyright.gov/docs/making_available/ ;
see also: T. Sydnor: The U.S. Making-Available-Right: Preserving the
Rights “To
Publish” and to “Perform Publicly”, 25 April 2014,
at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2421724 , (a
published draft).
[25] The debate on
this caught on early, see e.g. A.
Cruquenaire: Electronic Agents as Search Engines: Copyright related
aspects
[2001] International Journal of Law and Information Technology 3, p.
327-343.