Data mining, sui generis right and aggregators. Some reflections after the judgment of the court of justice of the european union in case CV-Online Latvia v Melons

Abstract

European Intellectual Property Law provides a special intellectual property (IP) right –the sui generis right– for those database makers that made a substantial investment when creating the database. This IP right is infringed in those cases where the defendant creates a risk that the database maker will lose incomes, thereby depriving that database maker of revenue which should have enabled him to redeem the cost of the investment in setting up and operating the database. However, in recent Melons case, the Court of Justice of the European Union redefines the sui generis right in relation to online aggregators. It highlights the fact that access to information and competition concerns have to enter the sui generis right’s infringement test. It is the first time that this Court balances the interest of the database maker and those of the other parties, as part of the infringement test. We have to keep in mind European caselaw on aggregators and scraping since scraping tools are playing and will play a key role in the development of artificial intelligence