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Thursday, 21 June 2012

Dataco v Sportradar: liability for sending and receiving sui generis databases

No, the IPKat hadn't forgotten to post anything about the Advocate General's Opinion in the Sportradar reference to the Court of Justice of the European Union (CJEU), Case C‑173/11 Football Dataco Ltd, The Scottish Premier League Ltd, The Scottish Football League, PA Sport UK Ltd v Sportradar GmbH and Sportradar AG. It's just that he was offline for a few hours, having enjoyed the cut and thrust of the British Black Music seminar on whether copyright was fit for purpose [the Kat suspects that most of us left the event with the same opinion we arrived with, but there was a lot of fun, and indeed emotion, in the debate].

To refressh readers' memories, Football Dataco and the other plaintiffs were responsible for organising football leagues and competitions in England and Scotland. Football Dataco managed the creation and exploitation of the data and IP rights relating to those competitions said it owned the sui generis right in the ‘Football Live’ database. This database, known aa Football Live, was a compilation of data about 'live' football matches, ie those in progress (goals and goal-scorers, the names of the players, yellow and red cards, fouls and substitutions). The data was collected mainly by former professional footballers hired as freelances by Football Dataco and who attended the football matches for that purpose. Football Dataco maintained that there was considerable investment in obtaining and/or verifying the information collected and the compilation of Football Live required skill, effort, discretion and considerable intellectual input [yes, some professional footballers have substantial intellectual capacity. That's why they get paid a fortune to play their favourite game and, once they retire, they get paid to watch the games. Is it any wonder that they never seem to want to become IP professionals?] by experienced personnel.

German company Sportradar GmbH provided live results and other English league statistics via its website betradar.com though its ‘Sport Live Data’ service. Betting companies which were customers of Sportradar GmbH allegedly had contracts with a Swiss company, Sportradar AG, the parent company of Sportradar GmbH. Those betting companies included bet365, a UK company, and Stan James, based in Gibraltar, both of which offered betting services aimed at the UK market.; their respective web pages had links to betradar.com. The Live Score option provided access to information that appeared in a banner running across the screen carrying the names of bet365 or Stan James, from which the referring court inferred that the UK public formed an important target for the defendant companies.

In April 2010 Football Dataco,, alleging that the information provided on Sport Live Data was extracted from Football Live, brought an action before the High Court of Justice, England and Wales, seeking damages for infringement of its sui generis right in its Football Live database. No way, said Sportradar, challenging the jurisdiction of the British courts and seeking a declaration of non-infringement in Germany.

The High Court said it did have jurisdiction to hear the claim, so far as it sought to establish joint liability on the part of Sportradar and those of its customers which used its website in the United Kingdom -- but that it lacked jurisdiction to hear the claim in so far as it sought to establish primary liability on the part of Sportradar. Both parties appealed to the Court of Appeal, which referred the following questions for a preliminary ruling.
‘Where a party uploads data from a database protected by sui generis right under Directive 96/9/EC (“the Database Directive”) ont o that party’s web server located in Member State A and in response to requests from a user in another Member State B the web server sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on its screen, 
(a) is the act of sending the data an act of “extraction” or “re-utilisation” by that party? 
(b) does any act of extraction and/or re-utilisation by that party occur (i) in A only? (ii) in B only; or (iii) in both A and B?’
On Thursday 21 June (which is today or yesterday, depending on where you are when this is posted, but definitely not tomorrow) Advocate General Cruz Villalón advised the CJEU to rule thus:
"Where a party uploads data from a database protected by sui generis right under Directive 96/9 ... onto that party’s web server located in Member State A and, in response to requests from a user in another Member State B, the web server sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on its screen, the act of sending the information constitutes an act of ‘re-utilisation’ by that party".
In other words, both the act of sending and the act of receiving look like being infringements that are actionable in the United Kingdom -- if, as is likely, the CJEU agrees with the Advocate General's advice.

Trial judge's decision here; Court of Appeal decision here

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