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Wednesday, 9 May 2012

Dataco and database: slipping under the Sportradar

A bird in the hand is worth two in the bush -- but there are also times when two birds are worth their weight in gold. One is when the birds in question are Bird & Bird, and they prove their worth by providing valuable information about a case that has greatly interested the IPKat even before the judgment was posted on BAILII for all of us to read. The fact that Bird & Bird was involved in this action and came up as top dog, as it were, has nothing to do with it. Anyway, the case is Football Dataco Limited & Others v Sportradar GMBH and Sportradar AG  [2012] EWHC 1185 (Ch). Readers may recall an earlier judgment in proceedings between the same parties before the Court of Justice of the European Union in Case C-604/10, which was recorded on this very weblog here. only a couple of months ago.

Anyway, the Bird & Bird media release runs like this:

"Online Sports Data Company not liable for use of Goal statistics from UK football matches 
The English [and Welsh] High Court has handed down judgment in the Football Dataco Limited & Others v Sportradar GMBH and Sportradar AG database right infringement case. The case was brought by certain English and Scottish Football Leagues and their licensees against an online sports data company, Sportradar.
The Court decided that Sportradar was not jointly liable for database right infringement with UK users who accessed its data. The users themselves were also not infringing database rights by accessing Sportradar’s current Live Score service which consisted of details of goals, and the times of goals for English and Scottish football matches. The Court held that this did not amount to a substantial part of the Claimants’ database.
The Court did decide that users who downloaded Sportradar’s data as part of the Live Score service as it was constituted prior to May 2011 were downloading a substantial part of the database, however it held that Sportradar were not jointly liable for such activity.

The Judge held that database right did subsist in the Claimants' database but accepted there was scope for argument and that there had been no prior decisions on whether the recording of events could give rise to database right. He stated: “I accept that there is scope for argument on the issue of subsistence. However, on the remaining issues, I have held that Sportradar are not liable. I am reluctant to burden the parties with a further reference to the CJEU…”.

The Claimants between them administered football in certain English and Scottish leagues and marketed the data (i.e. goals, red cards, yellow cards etc) in such matches. This data is compiled in a database, along with data from other matches and other sports, which is maintained by PA (the “PA Database”). The data is both updated and provided to third parties whilst matches are taking place.

The Defendants were Sportradar GmbH and Sportradar AG, a German and Swiss company respectively (together “Sportradar”). Sportradar provided data relating to sports events to customers, for example betting and media customers. The service which was of relevance to this action was called Live Scores.

The trial was concerned with the Claimants’ allegation that Sportradar were jointly liable with users of websites for acts of database right infringement committed by the users.

Subsistence of Sui Generis database right

Article 7 of the Database Directive provides that database right protection should be afforded to the maker of the database where there has been “qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents.”

The Judge referred to the decisions of the Court of Justice in the Fixtures Marketing Limited cases concerning fixtures lists for football matches, on the scope of database right protection and noted that the “substantial investment” required by the Directive could not be demonstrated by investment in the “creation” as opposed to the “obtaining, verification or presentation of the contents of the database”. The Judge noted that one reason which supports this approach is that data created by an individual or organisation is often not available to others until after it has been created. The fact that there is no alternative source for such data could effectively lead to the creator obtaining a monopoly over the data which is inconsistent with the objectives of the Directive.
In holding that database right subsisted in the relevant part of the PA database, the Judge held that:
“factual data which is collected and recorded at a live event such as a football match about events outside of the control of the person doing the collection and recording is not created by that person, but is obtained by him”
The Judges reasons were that (i) collecting and recording data falls within the ordinary meaning of the term “obtaining”, but less so within the meaning of “creating” (ii) in determining whether there is creation involved, the focus of the enquiry is whether the investment involves creation of new information but recording existing facts is not creating new information. The Judge also noted that, unlike in the Fixtures or BHB cases, in principle, others are free to collect and record the observed data for themselves.
Infringement by users

Substantial part

The users accessed data relating to English and Scottish matches by clicking on a link on the website which opened a pop-up window containing match data. The data provided through this link differed before and after the date of the Defence. Before the date of the Defence, goals, goal scorers, red cards, yellow cards and substitutions were provided for all matches. After the date of the Defence, for matches which were not shown live on television, only goals were provided.

The Judge held that the data provided before the date of the Defence was likely to have used sufficient data derived from the PA database to amount to a qualitatively substantial part. The Judge held that “the range of data, is in my judgment, sufficiently wide to require an investment of the same order as that required for the full data collection operation”. However, the Judge held that the position was different after the date of the Defence. The Judge held that “even if every goal included in the data extracted by a punter was derived from the claimants’ database (which is not by any means established), I would hold that the data so extracted would not be sufficient to amount to a substantial part.”

Insubstantial part

The Judge held that there was no evidence that individual users were extracting the data repeatedly and systematically nor was there any evidence that an individual user was accumulating data entries so as to reconstitute a substantial part of the original database.

Joint liability

Sportradar’s joint liability with users

The Judge held that Sportradar were not joint tortfeasors with the users. He held that the mere making available, abroad, of the means whereby a right may or will be infringed is not sufficient to make the supplier a joint tortfeasor.

Stan James' Case

A Judgment was given at the same time in relation to a second action brought by the Claimants. This time the action was against Stan James Plc ("Stan James"), a Gibraltan company. Stan James was a betting company and customer of Sportradar's Live Scores service.

The Judge held that Stan James were not currently liable for infringement in respect of the current service provided to its users. This was because their users were not extracting or re-utilising a substantial part of the database. The Court did find however that Stan James were jointly liable with users for the Live Score service as constituted prior to May 2011. This was because Stan James were directly encouraging their customers to use the Live Scores service".
Posting under difficult circumstances at the INTA Meeting in Washington DC, this Kat hasn't had a chance to read the judgment closely and comment on it, never mind provide illustrations. He however has katpats for Bird & Bird for supplying this speedy summary and to Paul Stevens (Olswang LLP, for Stan James plc) for being first to furnish him with an approved copy of the judgment.

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