Page 222 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

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data than through one database. By declining to offer data protection to these sole-source
databases, it alleviates the fear of an information monopoly.
These good intentions, however, have not come to full fruition. UGC databases that
are not covered by the sui generis right can gain a broad extra-legal privilege that is
unavailable under the Database Directive’s protection. Article 8 of the Database Directive
provides exceptions to the sui generis database right, allowing lawful users to make uses
of the database that do not conflict with the database maker’s legitimate interests in, or
normal commercial exploitation of, the database. Article 15 confirms that this exception is
mandatory and cannot be overridden by contract. However, if a database is not protected
under the Database Directive, these exceptions cannot be applied. In the hotly contested
and fiercely debated case of Ryanair v. PR Aviation, the CJEU upheld Ryanair’s prohibition
against web scraping in its ToU and rejected PR Aviation’s argument that such a contractual
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restriction overrode the exceptions to the sui generis right under the Database Directive.
The CJEU found that ‘Articles 8 and 15 which establish mandatory rights for lawful users of
databases’…‘are not applicable to a database which is not protected either by copyright or
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by the sui generis right under that directive’.
Ironically, the narrow interpretation of the sui generis right to protection, with the ‘spin-
off’ doctrine, could have resulted in a data monopoly, which the ‘spin-off’ doctrine initially
intended to avoid. Many UGC platforms, such as Facebook, Twitter, LinkedIn and Amazon,
are spin-offs and sole-source databases that can easily retain their monopolistic position by
sidestepping statutory exceptions and excluding any use of their data via ToU/ToS. Whether
such contractual deviations are valid depends on the contract law and competition law in
the countries where cases are brought, defeating the purpose of formulating a harmonised
framework for databases. Therefore, the second evaluation of the Database Directive
published in 2018 suggested that an assessment be carried out to determine the need to
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extend sui generis protection to spin-off, sole-source databases.
Even if a UGC database qualifies for sui generis protection under the Database Directive,
many problems still exist, especially with the exception clause, which is as important as the
copyright clause to drawing the line for legal web scraping. The exceptions are ambiguous
and insufficient. Article 8 allows a lawful user to extract and/or reuse ‘insubstantial parts’ of
a publicly available database for any purpose (Article 8(1)), provided that such use would not
‘conflict with normal exploitation of the database or unreasonably prejudice the legitimate
interests of the maker of the database’, and would not result in ‘prejudice to the holder of a
copyright or related right in respect of the works or subject matter contained in the database’
(Articles 8(2) & (3)). Nonetheless, the lack of a definitions of ‘lawful users’ and ‘insubstantial

82 European Commission, Evaluation of Directive 96/9/EC on the Legal Protection of Databases (n 75) 23.
83 Ryanair Ltd v PR Aviation BV, Case C-30/14.
84 Ibid para 39.
85 European Commission, Evaluation of Directive 96/9/EC on the Legal Protection of Databases (n 75) 13.

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