Attorney at Law
“Reusing” databases (GasPedaal case)
Internet search engines can be general (Google, Yahoo) or dedicated search engines, i.e., specializing in one topic. A metasearch engine sends search commands from its users to other search engines.
GasPedaal offers a metasearch engine dedicated to vehicle sales announcements, such that by means of a single search command, users can search simultaneously in several compilations of vehicle sales announcements. GasPedaal translates the search command into the proper format for third party search engines. The result is pooled in a single element showing the links to all sources, creating a page with essential information about each vehicle. One of the search engines used is AutoTrack, and 100,000 searches are conducted every day in GasPedaal, using 80% of its combinations on a daily basis.
A database is a compilation of data, works or other independent elements. Databases are copyright protected if they are original with regard to their structure or form of expression or arrangement of the content. Content, however, is not protected. The sui generis right over a non-original database protects only those that require a qualitatively or quantitatively substantial investment, and the protection thereof allows preventing the retrieval or the complete or substantial reuse of the content.
It is based on the idea that the content of the AutoTrack database can be protected by the sui generis right. A metaengine does not comb through other Internet sites like a search engine does, but rather it translates, in real time, its users’ search commands for those search engines all at the same time. Reuse is any form making all or a substantial part of database content available to the public by means of the distribution, rental or on line broadcasting of copies, or doing so in other ways. Metaengines provide users access to all database content by translating the commands, but it does so through a different channel than that provided by the manufacturer, by-passing the database owner because the user therefore does not have to enter the welcome page or the search form. This may mean lower earnings for the database owner, for example, due to advertising. This can negatively affect the owner’s ability to pay off the cost of the investment. Therefore, the activity of a metaengine such as the one described makes the database content available to the public, and it therefore is reusing the content. Ultimately, a substantial part of or all the database content is reused (it is actually equivalent to conducting a query in the actual database), because what is most important is the content that the metaengine is exploring, regardless of the results it obtains. In short, the reuse can be considered unlawful.
To link or not to link. (“Svensson” case)
This ECJ Judgment of 13 February 2014 (case C-466/12) deals with the following case: Two journalists who wrote press articles published on a newspaper’s web page, without any restriction whatsoever, filed a complaint against an undertaking called Retriever Sverige (RS), that manages a webpage providing its customers with lists of clickable links redirecting users to articles published on other web pages. The question is: does this constitute communication to the public?
Any act of communication of a work of art to the public must be authorized by the copyright holder (Article 3.1 Directive). Two elements stem from this: (1) “act of communication” (of a work of art) and (2) to a “public”.
As regards the former, an “act of communication” must be interpreted in the broadest meaning of the word in order to assure enhanced protection of copyright holders. For these purposes, making the work of art available to a public such that those who wish to access it may do so, but whether or not such persons do access it is irrelevant. Therefore, the hyperlinks in this case did constitute making the work of art available to the public and, accordingly, acts of communication.
As regards the second element, “effective communication to a public” must be understood as an undetermined though considerable number of potential recipients. In short, RS made a communication to the public.
However, since the case involves public communication of the same works of art in the same technical means (the Internet), it should be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorized the initial communication to the public. The home page did not have any means of restricting access: all Internet users could freely consult the information. Therefore, since the home page and hyperlink could be freely accessed, the potential recipients are the same. The ECJ understands that if the clickable link allowed avoiding restriction measures aimed at limiting access to the page to subscribers, there is a new public, and in such case said communication to the public would require authorization from holders.
However, the Directive must be interpreted as meaning that “the provision, on a website, of clickable links to protected works freely accessible on another website does not constitute an act of communication to the public”.
© 2015 José GARRIDO. All rights reserved.
José GARRIDO holds a Bachelor of Laws (LL.B.) from the Universidad Autónoma de Madrid, as well as a post-graduate degree in Spanish and European Patents from the Universidad de Barcelona. He continued his specialization in intellectual property law in Berkeley (California, USA) with a 6-month stay, with an in-depth study of trade mark law. He also pursued post-graduate private law courses at the Universidad Autonoma de Madrid. After garnering experience in two different firms, he founded Garrido Pastor Abogados in 1995. This firm combines the filing and registration of intellectual property rights with advising and litigation services concerning these rights.
Lecturer at Universidad Autónoma de Madrid on the Master on Intellectual Property
“La publicidad financiera y bancaria como publicidad informativa”. Revista de Derecho Bancario y Bursátil.
“La nulidad de la marca solicitada con mala fe” at press “50 years of AIPPI National group”
Attorney, European Community Trademark and Design Attorney, Member of the Bar Association of Madrid, and member of INTA and AIPPI.