The protection of documents seems to be a more effective tool to protect a (searchable) collection of data than the Databases Act that was created especially for this purpose. An example is the dispute between price-fighter PR Aviation and Ryanair. On its websites wegolo.com and wegolo.nl PR Aviation offers consumers the possibility to search flight data and to compare flight prices. Besides this search system, PR Aviation offers customers the option of booking the flight found through its intermediary services. However, Ryanair has objected to the use of its flight data by PR Aviation.
Investments Insufficiently Specified – No Database
According to Ryanair, the collection of flight data on its website must be regarded as a protected Database, and therefore PR Aviation should not be allowed simply to extract and reuse large parts of that database. In this dispute, as often, the question whether this collection is indeed a Database focused on whether Ryanair was able to prove that it had made substantial investments in this database (Section 1 (1) (a) of the Databases Act). Pursuant to European case law, the only costs eligible as investments are costs related to the acquisition and organization of the data. Costs related to the creation of data are excluded.
The Court then examined critically whether the costs alleged by Ryanair really met this standard. In the Court’s opinion, the item ‘investments in the presentation of the contents of the flight data collection’ only covers the costs of having the data processed. This item does not include the costs of offering and booking of flights or the communication with the public. The staff costs of implementing changes in the collection of flight data (the database) are eligible, but not the costs of drafting of those data. Costs relating to the accessibility and operation of the website and Ryanair’s ordinary business operations are also insufficiently related to the database to be considered as investments.
However, Ryanair had entered per item all costs relating to its flight data website. This ‘entanglement’ of costs eligible and not eligible as investments in the database makes it impossible for the Court to adjudicate the amount of the investment, and consequently the existence or non-existence of a protected Database. The Court therefore denied Ryanair’s reliance on the Databases Act.
Safety Net of Ryanair: Flight Data Protected as Document
In the Netherlands, a collection of factual data – even if it is no protected Database – is still protected on grounds of the protection of documents in the Dutch Copyright Act (Section 10 (1)). However, the protection of such a collection of data is less far-reaching than the ‘normal’ copyright-law protection, and only offers protection against (demonstrable) derivation by third parties through a ‘simple repetition’ of those data.
PR Aviation acknowledges that it has copied the flight data directly from Ryanair’s website; the derivation is therefore an established fact. The next question is whether this is a ‘simple repetition’ of Ryanair’s data. Because PR Aviation claims to receive about 22,000 requests for price comparisons daily, the Court held that in any case the data of Ryanair are systematically being copied. PR Aviation has claimed that it concerns only a small selection of Ryanair’s flight data, but has not substantiated this argument. Moreover, the Court held that – in line with previous case law – even one single search request in which only a selection is copied may be considered to be a ‘simple repetition’. The defense that PR Aviation changes the copied data by arranging them in a different order also does not hold here, because the Court considers these changes to be only minor, so that the simple repetition of Ryanair’s flight data still exists.
Ryanair is therefore allowed to prohibit the copying of its flight data by PR Aviation, because its collection of data enjoys the protection of documents.
This ruling shows once again how hard it is to prove that substantial investments have been made in a database. Ryanair was rapped on the knuckles by the Court here for claiming all the costs related to its website. The costs entered must be specified in the greatest possible detail, so that it is clear for the Court which activities the costs relate to. Would it be a good idea for producers of databases to record these costs neatly from the start? This would make a future reliance on the protection under the Databases Act a lot easier – provided that the investment is sufficiently substantial.
The ease with which Ryanair has won this case on the basis of the protection of documents may be partly due to the, at first sight, tame litigation conducted by PR Aviation; PR Aviation has not disputed that it derived the data directly from Ryanair’s website, nor has it relied on the right to quote as an exception to Ryanair’s copyright to the flight data. The question whether such a reliance would have been successful depends on the volume of data PR Aviation copies per search request; is this proportionate in nature and extent to the purpose for which PR Aviation quotes – in this case the offering of cheap flights in searchable form?
Despite the possible gaps in PR Aviation’s defense, this ruling shows that an owner of a database in the Netherlands has the protection of documents available – besides the less effective Databases Act – as a useful weapon to fight the use of (parts of) its database. It is the question whether reliance on this protection is in line with the freedom of speech of Article 10 of the ECHR. It is in the interest of consumers that providers like PR Aviation can freely use factual data (such as Ryanair’s flight data) in order to offer practical search services and price compare services on the Internet. It is not for nothing that the test for protection set out in the Databases Act is so strict; this was done to guarantee that only the collection and organization of data is protected, but not the data themselves. However, in this case the protection of documents offers Ryanair an effective means to take action against the use of precisely these factual data. Despite the strained terms between this protection and the freedom of speech of Article 10 of the ECHR, the Dutch Supreme Court – which the Court followed in this judgment – has ruled expressly that the protection of documents will be maintained, also after the introduction of the Databases Act.
Court of Utrecht 28 July 2010, LJN:BN 2268, Ryanair Limited/PR Aviation B.V.