The End of (Meta) Search Engines in Europe?
Chicago-Kent Journal of Intellectual Property, Vol. 14, Issue 1, 2014, pp. 145-172
25 Pages Posted: 20 Mar 2014 Last revised: 11 May 2017
Date Written: July 8, 2014
The technology behind the meta search engines supports countless number of Internet services ranging from the price and quality comparison websites to more sophisticated traffic connection finders and general search engines like Google. Meta search engines generally increase market transparency, intensify competition and decrease transaction costs of consumers. Because they are also capable of disturbing established business models of the indexed websites, a number of lawsuits were filed against the various operators of meta search engines over the last years in Europe. The scrutiny of the operation of some of them was recently even escalated to the Court of Justice of the European Union. In December 2013, the Court handed down its Innoweb C-202/12 ruling, where it held that operation of meta search engines is likely to infringe the database right of the indexed websites, assuming that they constitute a protectable subject matter. This paper therefore analyses the legal and practical consequences of this landmark decision for innovation, consumers and e-commerce in general.
This investigation then comes to the following conclusions: meta search engines sourcing product and price information from websites that directly sell services/goods are not likely to be affected by the decision due to lack of database protection of the used parts. On the other hand, meta search engines that source user generated content are likely to be affected and will need to acquire the licenses from the database owners. It is submitted that the Innoweb decision might increase the barriers-to-entry by prescribing licensing deals for new entrants, what may negatively impact the competition between different meta search engines and thus ironically foster the position of meta search incumbents. And also that this newly acquired blocking right will be mostly invoked in the Member States with a monopolistic structure of the indexed industries and serve predominantly as a tool to prevent the competition, rather than a new licensing opportunity. Last but not least, it is argued that the Directive 2006/114/EC concerning misleading and comparative advertising could remedy this inconsistency by serving as an external limit (an exception) to the sui generis protection in some scenarios.
Keywords: screen-scraping, data-scraping, database protection, sui generis, copyright, extraction, re-utilization, innovation, search costs, competition, meta search engines
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