Background

In April 2010, Football Dataco Ltd, Scottish Premier League Ltd, Scottish Football League and PA Sport UK Ltd (“Dataco”) brought proceedings against Sportradar GmbH and Sportradar AG (“Sportradar”) for alleged infringement of the sui generis database right which Dataco claimed to own in a database relating to football league matches.  This database, ‘Football Live’, comprised a compilation of data about football matches in progress (e.g. goals and goal-scorers).  Dataco maintained that obtaining and/or verifying the data and the compilation of Football Live required considerable skill, effort, discretion and intellectual input.

German company Sportradar GmbH provided live results and other English league statistics via its website.  Betting company customers of Sportradar GmbH entered into contracts with its Swiss parent company, Sportradar AG.  These customers included bet365, a UK company, and Stan James, established in Gibraltar.  Both offered betting services aimed at the UK market and both of their respective websites contained links to betradar.com, a website owned by Sportradar AG.  Match information provided to internet users referenced either bet365 or Stan James.  The referring court concluded that the UK public clearly formed an important target for Sportradar.

Sportradar challenged the High Court’s jurisdiction and sought a negative declaration that its activities did not infringe any of Dataco’s intellectual property rights.  The High Court held that it had jurisdiction to hear the claim concerning the joint liability of Sportradar and its customers using its UK website, but not a claim in respect of Sportradar’s primary liability for infringement. Both parties appealed to the Court of Appeal, which referred the following questions to the CJEU for a preliminary ruling:

“Where a party uploads data from a database protected by the sui generis right under Directive 96/9/EC … 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:

  1. is the act of sending the data an act of “extraction” or “re-utilisation” by that party?
  2. does any act of extraction and/or re-utilisation by that party occur
    1. in A only,
    2. in B only; or
    3. in both A and B?”

Earlier this year, Advocate General Cruz Villalón (AG) opined that where data is sent from a server in one EU member state in response to a request from an internet user in another EU member state and is then stored in the memory of that user’s computer and displayed on its screen, the act of sending the information constituted an act of “re-utilisation” by the sender under Article 7 of Directive 96/9/EC.  He considered that in this situation, re-utilisation occurred in all member states where a necessary act in the chain of re-utilisation occurred.

Ruling

The CJEU held that, looking at the wording of Article 7(2)(b) and the objective of the sui generis right, Sportradar’s acts constituted re-utilisation. Re-utilisation extended to any act, not authorised by the database creator protected by the sui generis right, of distribution to the public of the whole or part of the database’s contents. The nature and form of the process used was irrelevant.

The CJEU noted that Directive 96/9/EC did not aim to introduce uniform EU-wide protection under the sui generis right; this should be provided for under national law.  In that context, sui generis protection was limited in principle to the member state in which unauthorised acts of re-utilisation took place.  As observed by the AG, re-utilisation was characterised by a series of successive operations - which might take place in different member states.  However, the mere fact that the website containing the data in question was accessible in a particular member state was not a sufficient basis for concluding that the website operator was performing an act of re-utilisation.  If that were the case, websites and data obviously targeted at persons outside a certain member state but technically accessible in that state would wrongly be subject to the state’s national law. The location of the re-utilisation was therefore dependent on whether there was evidence of intention by the re-utiliser to target users in a certain member state.

Circumstances that could constitute evidence in this case included: (i) the data on Sportradar’s server including data relating to English football league matches; (ii) Sportradar granting betting companies offering betting services to the UK public access to its server; and (iii) the betting companies’ websites being in English, despite it not being the native language of the member states where Sportradar carried out its activities. As the relevant national court, the Court of Appeal will determine whether the circumstances demonstrate evidence of intention. 

The CJEU specifically rejected Sportradar’s argument that re-utilisation would only take place in the member state where the web server was located. This would allow operators with servers based outside the EU (or that could not be located) to avoid enforcement by a claimant under its national law.

Comment

The requirement to demonstrate intention to target the public in a particular member state renders the CJEU ruling less favourable to database right owners than the AG’s opinion. However, the CJEU’s conclusion states that an infringing act takes place “at least” in the member state where there is evidence of intention, leaving open the question as to whether this could include the state where emission took place. The ruling is also potentially applicable to copyright cases as the relevant copyright legislation includes the same wording as set out in the Directive 96/9/EC definition of re-utilisation, “making available to the public”, in the context of an act of communication to the public.