The sui generis right of databases and search engines: AG’s conclusions in the “CV Online Latvia” case

On January 14, 2021, Advocate General (AG) Maciej Szpunar submitted his conclusions on case C-762/19 (SIA “CV-Online Latvia” v SIA “Melons”).

The dispute can be summarized as follows: CV-Online Latvia (“CV-Online”) operates the website www.cv.lv, containing a database developed by CV-Online featuring job advertisements posted by various companies. SIA Melons (“Melons”) operates the website www.KurDarbs.lv, a search engine specializing in job advertisements that searches several sites containing job advertisements and redirects users to the sites on which the advertisements were initially published, including CV-Online’s website.

CV-Online filed a claim against Melons arguing that it commits “extraction” and “reutilization” of a substantial part of the content of its database, in accordance with Article 7 of Directive 96/9, therefore infringing its sui generis right.

The court of first instance upheld the claim, leading Melons to appeal the judgment before the Regional Court of Riga, which decided to suspend the proceedings and refer two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling regarding whether Melons’ activity constitutes “reutilization” and “extraction” under Directive 96/9.

The AG reformulated the questions referred to examine them jointly and believes that what the CJEU is really being asked is whether, under Article 7.1 and 2 of Directive 96/9, the creator of a database that is freely accessible online can prevent an online search engine specializing in locating database content (a “content aggregator”) from using it.

It should be recalled that Article 7.1 of Directive 96/9/CE establishes that database creators can prohibit the extraction or reutilization of all or a substantial part of their content, assessed qualitatively or quantitatively, when obtaining, verifying or presenting that content represents a substantial investment from a qualitative or quantitative viewpoint. The AG recalls: “It follows from the wording of that provision that its primary objective is to limit protection by the sui generis right solely to databases which require substantial investments.”

He clarifies that, although the purpose of the sui generis right of databases is to protect the database creator’s investment in making it, this does not prevent the creation of innovative products that provide added value. The AG refers to online content aggregators, which not only make it easier to structure and search for information online, but also contribute to the smooth functioning of competition and the transparency of offers and prices, for example, in the passenger air transport market.

Therefore, according to the AG, the issue is how to strike a fair balance between the interests of those operators and those of the content aggregators and their users.

He proposes that a search engine that copies and indexes all or a substantial part of the content of databases freely accessible online and that allows its users to perform searches on those databases, as in this case, effectively extracts and reutilizes that content within the meaning of Article 7 of the Directive.

That being said, given the Database Directive’s purpose, and particularly the danger that exercising the sui generis right may entail abuse of a dominant position, the AG proposes to also establish two limits on the creator’s right:

• First, “the creator of a database has the right to prevent the extraction or the reutilization of the whole or a substantial part of the contents of that database only on condition that such extraction or reutilization adversely affects its investment in obtaining, verifying or presenting those contents, that is to say, that it constitutes a risk to recouping that investment by the normal exploitation of the database in question.”
• Second, exercising the prohibition based on the sui generis right must not constitute abuse of the dominant position in the market concerned or a secondary market, which is for national courts to oversee.

Authors: Inés Cabañas and Carolina Urbano