Page 240 - 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

195
void’, the other exception in Article 9, is not included. Whether Article 9 can be overridden
has been left to the member states’ discretion.
A trickier problem has been how far the ToU/ToS in a UGC platform whose UGC
database is excluded from the Database Directive can reach to restrict web scrapers. The
CJEU has appeared to endorse any contractual arrangements included in ToU/ToS, as
shown in Ryanair v. PR Aviation. However, the national courts have reached conflicting
196
results. For example, in Ryanair v. Vivacances, the Tribunal de Commerce de Paris declined
to prohibit the defendant’s scraping based on the plaintiff’s argument that the ToU was a
contract of adhesion unilaterally made by the plaintiff. The court left the determination of
197
the ToU/ToS’ legitimacy to the stage of full ruling. Ryanair also brought suits against
CheapTickets in Germany. The German Federal Supreme Court explicitly upheld web
scraping on the ground that the scraped information was freely available from Ryanair’s
198
website, regardless of the restrictions imposed under its terms and conditions. Ryanair
also lost its suit against the Spanish online booking service Atrapola. The Commercial Court
of Barcelona concluded that there was no breach of Ryanair’s ToU because there was no
contractual relationship between Atrapola and Ryanair. Conversely, in another dispute with
199
a price comparison site, Billigfluege, the Irish High Court was satisfied that Ryanair’s ToU
had already formed the basis of a binding agreement between Ryanair and its users. 200
Another deficiency in the contractual remedies has roots in the concept of privity, which
precludes the imposition of contractual obligations on third parties. This means that even
if ToUs/ToSs have the legal effect of prohibiting scraping behaviour and the use of the
scraped information, they cannot prevent the dissemination of the scraped information by a
third party who has taken the scraped information from the scraper’s website. The plaintiff
platform cannot bring a claim for breach of contract against the third party.

7.4 Proposed Solutions for Web Scraping of UGC Databases

The legal framework for the UGC databases is far from well-established. The remedies
discussed above cannot be well adapted to the UGC context. This thesis therefore suggests a
tailor-made scheme for the web scraping of UGC databases.

7.4.1 Copyright approach to web scraping of UGC databases

If the scraped UGC is copyrightable, such as a video on YouTube or Tik Tok, the web

195 Database Directive, art 15.
196 Ryanair Ltd v PR Aviation BV, Case C-30/14.
197 Ryanair v Vivacances (Opodo), Tribunal de Grande Instance de Paris, Apr. 9, 2010.
198 Ryanair v CheapTickets, BGH April 2014, case no.I ZR 224/12
199 Ryanair v Atrápalo (C-572/2015), October 2012.
200 Ryanair v Billigfluege.de GMBH, [2010] IEHC 47 (2010).

• 226 •