Football Data Co Ltd & Others v Sportradar Gmb H

At the end of November 2010 Mr Justice Floyd held that the act of copyright infringement by making a work available to the public by online transmission is committed only where transmission takes place (and not where reception occurs). In doing so, Floyd J has gone against precedent cases in Canada and the USA, which held that the permission of the copyright owner was required in the country where works were accessible on a website even where the website is hosted in another country. The approach also varies from that taken in UK defamation cases, where accessibility in the UK is sufficient to found jurisdiction, even if the content is hosted in another jurisdiction.

In this case, the claimants are the various English and Scottish football leagues and Football DataCo Ltd, which is a company owned by the FA Premier League and which exploits intellectual property rights related to matches organised by the Leagues. The claimants brought an action against Sportradar in relation to its competitor website, which provides live scores, results and other statistics relating to UK football matches, for infringement of copyright and database rights in a database belonging to Football DataCo comprising the statistics (goals scored, penalties, substitutions etc) from UK football matches. Sportradar stored the data on webservers in Germany and Austria but the website could be accessed from anywhere, including the UK.

The Judge had to decide whether the claimants had a good arguable case in order to determine whether the English court had jurisdiction. The Judge held that there was a good arguable case for authorisation and joint infringement by Sportradar with UK customers but that there could be no primary liability for UK copyright infringement by Sportradar for communication to the public as no act of making available to the public had taken place in the UK. The act of transmission had taken place in Germany. The Judge applied the same theory as is applied to broadcasts within the EU, which is that the place where the act of broadcasting takes place is the place where the signals are introduced into an uninterrupted chain of transmission: the so-called ‘emission theory’.

The decision is good news for website operators who, if the approach is followed in other jurisdictions, will only need permission to make available copyright works from copyright owners in the country in which the transmission is made and not in every country in which the works are available. However, the Judge’s reasoning does seem to have overlooked some potential problems with this approach.

The WIPO Treaties and the EC Information Society Directive do not specify where the making available of an online transmission takes place, leaving a great deal of uncertainty and complexity in cases involving cross-border internet transmissions. Difficulties arise in determining the place of transmission, in particular, where there are multiple transmission points and many interlinked sites with servers in various jurisdictions. Floyd J’s approach means it will become more difficult for copyright owners to bring action against infringing websites. If the ‘emission theory’ for internet transmissions is adopted more widely, website operators will be likely to take advantage of being able to operate in their jurisdiction of choice but host content and make transmissions from foreign jurisdictions with unsophisticated and slow legal systems and laws which provide copyright owners with a lower level of protection.

UK copyright owners will be faced with complex issues of jurisdiction and applicable law when attempting to tackle website operators who could be based in the UK and targeting UK consumers but simply hosting the website on servers based in a foreign jurisdiction. The issue needs to be decided ultimately at international level so that a common approach applies globally.

It is disappointing therefore that the Judge decided not to refer the issue to the ECJ for a decision at European level at the minimum. However, the decision has been appealed.