Court of Utrecht in summary proceedings, 21 November 2007, LJN: BB8341, Wegener ICT Media B.V./Innoweb B.V.
Innoweb operates a so-called ‘meta search engine’ through the website Gaspedaal.nl. On this search engine the visitor can search the used car offers on seven different car sites, including the site of the claimant Wegener: Autotrack.nl, with the help of a number of selection criteria. On the basis of the search request Gaspedaal.nl produces a list of results, in which it copies the photograph, brand, type, year of manufacture and odometer reading of the relevant used car from the AutoTrack database, with a deep link to the relevant advertising page on Autotrack.nl.
The difference with search engines for houses is that the websites of the estate agents were only a spin-off of their normal activities, and were therefore not protected by database law. However, the website Autotrack.nl is not a spin-off, but is part of Wegener’s core business. Wegener’s investment of – as it maintains – 3.5 million euro in Autotrack.nl is sufficiently substantial and therefore the court in summary proceedings considered this site to be protected as a database.
Gaspedaal.nl does not use a substantial part of the Autotrack database. In the list of results as result of a search request, it only uses a small portion of Autotrack’s database. However, Gaspedaal.nl does regularly use a non-substantial part of this database in its search results. This constitutes infringement only if this non-substantial use by Gaspedaal.nl is damaging on the normal exploitation of Autotrack.nl or if by this use unjustified damage is inflicted upon the producer of that site (Wegener).
However, Wegener has insufficiently substantiated its claim that the number of visitors of Autortrack.nl is declining drastically as a result of the launch of Gaspedaal.nl. According to Gaspedaal.nl, its site may even have a magnet effect for that site by the click-through option to Autotrack.nl. Therefore the court in summary proceedings has ruled that the site Gaspedaal.nl does not inflict damage on the exploitation of Autotrack.nl and this use, and therefore does not infringe the database rights of Wegener.
No Direct Competitor, So Not Unlawful
Because the results list of Gaspedaal.nl is not a simple repetition of the results list of Autotrack.nl it does not infringe the limited copyright protection on this result list (geschriftenbescherming / protection of documents) of Autotrack.nl either. This limited protection against derivation follows from the fact that Wegener asked protection for a ‘rudimentary’ document, consisting of technical data and figures.
Gaspedaal.nl is also not acting unlawfully. According to the court in summary proceedings, Gaspedaal.nl is no direct competitor of Wegener because Gaspedaal is not a car site but a meta search engine. Furthermore, Gaspedaal.nl clearly indicates on its home page what sites it searches (including Autotrack.nl). Therefore there is no deception or damage to reputation for Wegener.
However, in our opinion it could well be argued that in practice, on both websites, Gaspedaal.nl and Autotrack.nl ,the same services are offered. After all they are both websites on which advertisements for cars are offered to visitors. As a direct competitor of Autotrack.nl, the court in summary proceedings might well have found the website Gaspdaal.nl to be unlawful.
Even if you have a database right, it remains difficult to defend yourself against a meta search engine that systematically “picks” data from your website. Wegener, for example, has not succeeded in demonstrating infringement of its database. The court in summary proceedings was susceptible to the argument of Innoweb that the site Gaspedaal.nl might have a magnet effect because of the click-through option to Autotrack.nl, and that therefore Wegener would not suffer any damage by this requesting of non-substantial parts from its Autotrack database.
Originally, the protection under the Database Act was created to protect the investments of producers of databases. Wegener can only earn back its investments in the Autotrack database by the income from the advertising on its home page. However, the click-through option on Gaspedaal.nl circumvents the home page of Autotrack.nl. It is therefore likely that in the future the home page of Autotrack.nl will be visited less often because of the launch of Gaspedaal.nl. As a result, Wegner will miss out on important income from advertising. On the basis of this judgment database law thus offers Wegener insufficient protection to earn back its investments. This indicates a lacuna in the protection offered to producers of databases under the Database Act.
Wegener ICT Media B.V. instituted proceedings on the merits against Innoweb B.V. on 15 January 2008.