The European Court has ruled in case C‑762/19 „CV-Online Latvia“ SIA v „Melons“ SIA. This dispute concerns potential infringements of sui generis rights over databases and has the following background:
CV-Online, a company incorporated under Latvian law, operates the website http://www.cv.lv. That website includes a database, developed and regularly updated by CV-Online, containing job advertisements published by employers.
The website http://www.cv.lv is also equipped with meta tags of the ‘microdata’ type. Those tags, which are not visible when the CV-Online web page is opened, allow internet search engines to better identify the content of each page in order to index it correctly. In the case of CV-Online’s website, those meta tags contain, for each job advertisement in the database, the following key words: ‘job title’, ‘name of the undertaking’, ‘place of employment’ and ‘date of publication of the notice’.
Melons, also a company incorporated under Latvian law, operates the website http://www.kurdarbs.lv, which is a search engine specialising in job advertisements. That search engine makes it possible to carry out a search on several websites containing job advertisements, according to various criteria, including the type of job and the place of employment. By means of hyperlinks, the website http://www.kurdarbs.lv refers users to the websites on which the information sought was initially published, including CV-Online’s website. By clicking on such a link, the user can, inter alia, access the website http://www.cv.lv, in order to become acquainted with that site and the entirety of its contents. The information contained in the meta tags inserted by CV-Online in the programming of its website is also displayed in the list of results obtained when using the specialised search engine of Melons.
Taking the view that there is a breach of its sui generis right under Article 7 of Directive 96/9, CV-Online brought an action against Melons. It maintains that Melons ‘extracts’ and ‘re-utilises’ a substantial part of the contents of the database on the website http://www.cv.lv.
The court of first instance found that there had been a breach of that right, on the ground that there was a ‘re-utilisation’ of the database.
Melons brought an appeal against the judgment at first instance before the Regional Court, Riga (Civil Law Division), Latvia. It maintains that its website does not provide online transmission, namely, that it does not operate ‘in real time’. Melons also claims that a distinction must be drawn between the website http://www.cv.lv and the database which it contains. It submits, in that regard, that it is the meta tags used by CV-Online that cause the information relating to the job advertisements to appear in the results obtained by means of the http://www.kurdarbs.lv search engine and that those meta tags are not part of the database. Melons claims that it was precisely because CV-Online wanted the search engines to show that information that CV-Online inserted those meta tags in the programming of its site.
In those circumstances, the Regional Court, Riga (Civil Law Division), Latvia decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Should the defendant’s activities, which consist in using a hyperlink to redirect end users to the applicant’s website, where they can consult a database of job advertisements, be interpreted as falling within the definition of ‘re-utilisation’ in Article 7(2)(b) of [Directive 96/9], more specifically, as the re-utilisation of the database by another form of transmission?
(2) Should the information containing the meta tags that is shown in the defendant’s search engine be interpreted as falling within the definition of ‘extraction’ in Article 7(2)(a) of [Directive 96/9], more specifically, as the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form?’
The Court’s decision:
Article 7(1) and (2) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that an internet search engine specialising in searching the contents of databases, which copies and indexes the whole or a substantial part of a database freely accessible on the internet and then allows its users to search that database on its own website according to criteria relevant to its content, is ‘extracting’ and ‘re-utilising’ that content within the meaning of that provision, which may be prohibited by the maker of such a database where those acts adversely affect its investment in the obtaining, verification or presentation of that content, namely that they constitute a risk to the possibility of redeeming that investment through the normal operation of the database in question, which it is for the referring court to verify.