Web scraping and intellectual property rights in low cost airlines tickets intermediation

Ryanair’s decision to exclude any commercial brokering in the sale of its airline tickets is the conduct upon which the Court of Appeals of Milan expressed the judgement commented here below, between the Irish airline and the Italian travel agency named Viaggiare that, at first instance, denounced the conduct of Ryanair as it made impossible for the travel agency to sell Ryanair’s airline tickets directly to consumers, forcing the travel agency to the reuse of data provided by Ryanair’s database in order to sell indirectly the tickets on its website. The Court (in partial reform of the judgment of the Court of First Instance) held that the airline’s decision to reserve for itself the sale of airplane tickets was not an abuse of a dominant position as provided by Article 102 of the Treaty on the Functioning of the European Union, since Ryanair held in the market of European flights only 10%, which is a very low share excluding a dominant position of the company on said market. Under an antitrust perspective the motion raised by Ryanair aimed at excluding a dominant position on the market of the European flights was granted, while under IP rights perspective Ryanair was defeated. To this regard, the Court did not grant Ryanair’s motion to retain that the use of its trademarks by Viaggiare violated Ryanair’s privative rights; the Court also ruled that Ryanair’s database couldn’t be considered as owned by Ryanair, since the same, being completely detached from technical and functional considerations dictating the choice and the organization of the data, was not the result of a creative expression and, therefore, an intellectual property as ruled by art. 2, 64-quinques and 64-sexies of the Copyright Law. The Court then found that there was not even protection under the so called "sui generis" doctrine of Rynair database because the protection of said database was aimed at excluding the marketing of flight tickets and not to protect Ryanair investment efforts. The conduct by Viaggiare of "screen scraping" Ryanair data concerning airline tickets offering was considered legitimate as Ryanair - in the Term of Use of his website - provided the access (granting a license) to third parties on his data.

Alessandra Corigliano, Web scraping e diritti di proprietà intellettuale nell’intermediazione di biglietti aerei low cost in "RIVISTA ITALIANA DI DIRITTO DEL TURISMO" 22/2018, pp 120-164, DOI: 10.3280/DT2018-022005