In its October decision in Football Dataco v Sportradar (C-173/11) the Court of Justice of the European Union ("CJEU") held that database infringement occurs at least in the place where an internet user accesses the data, where there is evidence of an intention to target the public within that jurisdiction, notwithstanding the fact that the data may be sent from a server located outside that Member State. The ruling will be welcome news for database rights owners and also provides useful guidance in a copyright context. We consider the implications for anti-piracy - and the anomalies that remain.
Football Dataco alleged that Sportradar had copied match information from its database "Football Live" onto its own competing website betradar.com. Betradar.com is hosted on servers inGermanyandAustria, but was made available toUKinternet users through a link on the sites of several betting companies that Sportradar had contracted with. In order to consider whether thesui generisdatabase right, which prevents re-utilisation of the contents of a database, had been infringed by Sportradar in theUK, the Court of Appeal sought a preliminary ruling from the CJEU to confirm whether the act of re-utilisation takes place where the data is emitted, later downloaded, or both.
It was ruled that accessing a database from a particular location "is not in itself a sufficient basis for concluding that the act of re-utilisation" has taken place in that territory. The key question is whether there is evidence of an intention to target persons in that territory, which is for the national courts to determine on the facts. The CJEU suggested that the courts may, in this case, take into account the fact that the database covered UKleague matches, the website was in English and Sportradar provided access to its servers to companies known to have a presence in the UK. The CJEU chose not to clarify whether re-utilisation also took place where the server was located. However, the wording "at least" leaves open the possibility, as had been recommended by the Attorney General in June, that re-utilisation might also occur at other parts of the transmission chain.
This ruling will be welcome news for database right owners as it prevents infringers from attempting to avoid liability by locating their servers abroad. The question of where the restricted act takes place has been debated in the context of copyright law, as well as database law. This decision therefore provides useful guidance in a copyright context as the reasoning relating to "re-utilisation" can also be applied to communication to the public and in particular the "making available" right. While this decision is likely to surprise few rights holders - the opposite result would have undermined the rights granted by the 2007 Copyright Directive and have been a serious blow to the battle against piracy - it does leave some anomalies. For example, a clip on aUKwebsite that is within "fair dealing" in English law may be illegal if made available to French consumers.