Possible IP Limits to Flight Information on Third-Party Travel Websites
Kayak, Expedia, Travelocity, Google Flights, Priceline. Consumers use these travel websites daily to compare prices and flight schedules for numerous airlines to book the most convenient or cheapest fares possible. But sometimes tension exists among the interests of the airlines, third-party travel websites, and consumers when it comes to use of these travel websites.
DOT Looking Into Practices of Travel Websites
To evaluate – and potentially regulate how airlines sell flights to consumers online – in October 2016, the Department of Transportation (DOT) posted a Request for Information (RFI) on Exploring Industry Practices on Distribution and Display of Airline Fare, Schedule, and Availability Information (81 FR 75481). This RFI requested information on whether airline restrictions on the distribution or display of airline flight information harm consumers and constitute an unfair and deceptive business practice and/or an unfair method of competition.
Is Flight Data Proprietary?
Out of this RFI, an interesting question has arisen – can or should flight data be considered proprietary or be protected as intellectual property of the airlines? Industry stakeholders, including the Internet Association, believe that flight information is akin to bus or train schedules that are available to the public. Further, flight information is purely factual data, rather than a creative item that lends itself to copyright protection. Accordingly, the third-party travel websites should be allowed to compile this data because flight information and pricing has not been, and still should not be, considered the intellectual property of airlines.
On the other hand, airlines argue that they have invested significant money in developing methods to set schedules and fares, to effectively market air transportation, and ultimately to fill as many seats as possible on the flights an airline operates. In contrast to bus or train schedules, flight prices, schedules, and availability can change in response to a competitive marketplace. Thus, airlines believe that – at the very least – the flight information should be considered proprietary information.
As you can see, this RFI raises several questions of importance to airlines, third-party travel websites, as well as consumers. Should the flight information be considered the intellectual property of the airlines? Also, regardless whether the flight information is intellectual property of the airlines, is it anti-competitive or unfair or deceptive for airlines to limit publicly available information that could lead to more competition and lower prices for consumers? While the Department of Transportation is unlikely to make specific ruling as to whether flight information should be considered the intellectual property of the airlines, any actions taken in response to this RFI could affect airlines, third-party travel websites, as well as consumers.
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