Legality of Online Recruitment Online Recruitment Conference 20 th June 2006, Westminster London Paul Van den Bulck Lecturer, University Paris XII Lecturer, University R. Schuman (Strasbourg) Attorney-at-law at the Brussels Bar

Legality of Online Recruitment

 Is my website protected as a database?  Copyright protection for “original” databases  Sui generis protection of database contents which do not meet the “original” requirement  Recent evolution of the sui generis protection  Is a search engine infringing my website?  Current situation on deeplinking  Case study: Google case

Is my website protected as a database?  Directive 11 March 96 EC on the legal protection of databases  Database definition o Collection of independent works, data or other materials o Arranged in a systematic or methodical way o Individually accessible by electronic or other means

Is my website protected as a database?  Copyright protection v. Sui generis protection  Copyright protection o Database contents o Databases which meet the « originality » requirement, i.e. by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation o Computer programs used in the making or the operation of databases

Is my website protected as a database?  Sui generis protection  Sui generis right for the maker of a database  Protection requirements o a qualitatively and/or quantitatively substantial investment o in either the obtaining, verification or presentation of the database contents

Is my website protected as a database?  Sui generis protection  Scope o Extraction of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the database contents o Re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the database contents

Is my website protected as a electronic database?  Sui generis protection  Lawful users of a database made available to the public CAN o extracting & re-utilizing insubstantial parts of the contents, evaluated qualitatively and/or quantitatively, for any purposes (included commercial ones, see ECJ) CANNOT o perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of its maker

Is my website protected as a database?  Limits to the sui generis protection  Landmark judgements of the European Court of Justice November 9, 2004 o British Horseracing & Fixtures Marketing Cases  BHB’s database consisting of the officially identified names of riders and runners is not within the sui generis right scope  Investment in the obtaining of the contents refers  To resources used to seek out existing independent materials and collect them in the database  Not to resources used for the creation as such of independent materiels

Is my website protected as a database?  Limits to the sui generis protection  Landmark judgements of the European Court of Justice November 9, 2004 o Investment independent of that required for the creation of the data o Exclusion from data created at the same time as its processing

Is my website protected as a database?  The sui generis right at stake?  First evaluation by DG Internal Market & Services of Directive 96/9/EC on 12 December 2005 o 4 policy options  Option 1: Repeal the whole Directive  Option 2: Withdraw the sui generis right  Option 3: Amend the sui generis provisions  Option 4: Maintaining the status quo o Stakeholders were invited to submit their observations by 12 March 2006

Is my website protected as a database?  The sui generis right at stake? Opposite views  European Association of Directory and Database Publishers o The definition of the term « database » needs to be precise o The definition of « insubstantial part » has to be improved in order to include broader situations  Yahoo! o Favors option 2: withdrawal of the sui generis right o Protection through technology and pre-existing copyright law is enough o Fear for meta-search engines of being sued under the sui generis right

Is a search engine infringing my website?  Current situation on deeplinking  Linking is a fundamental tool in using the Internet  Definition of deeplinking o a link from one website to another that  bypasses the second website's home page and  takes the user directly to an internal page on the site

Is a search engine infringing my website?  Deeplinking right v. Sui generis database protection  Search engines position o Most of search engines assembles their databases by extracting information from other websites o Website operators can use exclusion headers (software do-not-enter signs) in order to protect their databases from such extraction o In case of dispute, search engines will use a variety of defenses for this extraction under copyright law, e.g., fair use, fair dealing  Since the introduction of the sui generis right, a national case law mostly in favor of the maker of the database

A case law mostly in favor of the database maker

German case law

 German case: Stepstone v. Ofir (2001)  Job advertisements website protectable as database  Deeplinking oRepeated & systematic distribution or publication of insubstantial parts oUnreasonably prejudices legitime interests of its maker

Dutch & Danish cases law  Dutch case: PCM v. Kranten.com (2000)  News website not protectable as database  Court held the newspaper had put insufficient effort into composing the collection of headlines  Danish case: Danish Newspaper v.Newsbooster (2002)  News website protectable as database  Deeplinking infringes database right  Repeated & systematic reproduction and publication of claimant’s headlines and articles

French case law

 Cadres On-line v. Keljob (2000)  Every creation of hyperlinks between websites, whatever the method used, that would have the consequence of oRerouting or denaturing the contents of the target site, oMaking the target site appear as one’s own, without mentioning the source, notably by not allowing the URL address to be displayed and moreover by displaying its own URL address oNot indicating the user clearly and unequivocally he is being to a site not related to the site  Infringes sui generis database right  + Unfair competition

French case law  Cadremploi v. Keljob (2001)  TGI Paris, September 5, 2001 o Job advertisements website protectable as database o Extraction of substantial parts, evaluated qualitatively Essential parts of a job offer include:  Post title  Sector of industry  Geographic zone  Publication date on Cadremploi site  URL address oInfringes sui generis database right  Court of Appeal Paris, May 25, 2001 oOverruled TGI decision oNo infringement of the sui generis database right

ECJ decisions: a turning point?  The sui generis right: no more a protection against deeplinking? IF  resources used for creating, which includes checking, the lists of job/candidate entries  are not independent of the ones used in obtaining or verifying the contents of the database  No investment independent of that required for the creation of the data  No sui generis protection

Search engines strike back!  Yahoo! is moving to the recruitment market  Launch of HotJobs Job Engine in 2005 oFeatured job results oOffers from sponsor companies oJob listings from the web (extracting them from other websites)

New business model: Google AdWords

 Tired of unqualified candidates who apply to jobs on job boards and newspapers?  How to get more targeted, passive candidates?  Enables a recruitment advertiser to select  What site(s) they want to be seen  What the message is  What kind of creative they want presented

Alternative remedies against deeplinking  Technical protection measures  Requiring password access  Blocking requests or links except form certain pre-approved sites  Use of dynamic (i.e., frequently changing) URLs for subsidiary pages  Evidence pre-collection (e.a. invisible tracers, intentional misprints)  Linking Policies & Agreements  Unfair competition

Links policy

Legality of Online Recruitment THANK YOU!