A decision has been reached by the Court of Justice of the European Union (CJEU) regarding Football Dataco Ltd and Others v Sportradar GmbH and Another 173/11 referred from the Court of Appeal of England and Wales in respect of a request for interpretation of Article 7 of Directive 96/9/EC on the Legal Protection of Databases (the Directive). The reference concerned the alleged infringement by Sportradar of a sui generis right in a database owned by Football Dataco.
Football Dataco organises football competitions in England and Scotland. It also compiles, maintains and exploits a database of statistics obtained from the data and intellectual property rights arising from such competitions. Sportradar provides, via the internet, result and statistic information about, inter alia, English football league matches. It was alleged that Sportradar had been copying Football Dataco’s data onto its own server to be transmitted to members of the UK public who access Sportradar’s web services through use of English betting companies’ online services that are affiliated with Sportradar’s website.
Football Dataco alleged before the High Court that their sui generis right in the content of the database was infringed. The Court, however, declined jurisdiction to hear the action where primary liability was of Sportradar only and not of Sportradar together with its customers in the United Kingdom. Both parties appealed the decision and the Court of Appeal made a reference to the CJEU.
The sui generis right is contained at Article 7 of the Directive. It provides that,
Where there has been […] a substantial investment in […] the obtaining, verification or presentation of the content to prevent extraction and/or re-utilisation of the whole or a substantial part of the content of the database, the maker of the database shall have a right of protection provided for by Member States.
The question before the CJEU was two-fold: i) whether or not any act of extraction or re-utilisation of data sent by Sportradar occurred, and, if so, ii) in which location(s) this act of extraction/re-utilisation occurred: only the Member State emitting the data, only the Member State into which the data was transmitted, or both Member States.
The CJEU confirmed that Sportradar’s usage of Football Dataco’s data did constitute re-utilisation in accordance with the terms of Article 7 (2) (b) of the Directive. Additionally, the CJEU highlighted the fact that sui generis is not a “unitary community right” within the meaning of Article 8 (2) of the Directive and, accordingly, it is important to determine the location in which reutilisation could be deemed to occur.
In making an assessment of location, the CJEU concluded that consideration must be given as to whether, in re-utilising sui generis data, evidence of any intention to target users in another Member State can be shown.
The CJEU deemed evidence of intention to be paramount, so as to avoid the situation whereby websites targeted at a particular country, but containing content accessible in other Member States, might become subject automatically to the national laws of those other Member States. Aspects of the case were highlighted as examples of such evidence that might constitute intention. In particular, the use of a language common to that of the Member State in which the alleged infringer seeks to pursue its activities (in this case, English); the content of the re-utilised information (in this case, English league matches); and links with third parties (in this case, UK-based betting agencies) were cited.
In conclusion, the CJEU determined that, where there is evidence of such intention, re-utilisation takes place, “at least”, in the Member State of transmission.
Regarding the Member State of emission, whilst the CJEU did not specify the precise circumstances in which re-utilisation of data in an emitting state could be said to have occurred, it did refute Sportradar’s submission that only the Member State of emission should be regarded as the location in which re-utilisation takes place, notably on the grounds that this would leave open the possibility of locating a server in a specific jurisdiction or, indeed, outside of the remit of EU national laws altogether.
It is likely that the case will have an impact on the development, look and feel of websites, as well as the accessibility of information on servers and any licensing of server information entered into, in order to avoid any interpretation that the content might be deemed unintentionally to be targeted at users in other jurisdictions.
In addition, the case offers interesting guidance that may be cited in copyright cases where the location of communication to the public is in contention before the court. Further, whilst the CJEU did not address specifically the issue of whether re-utilisation might also occur in the country of transmission, the fact that the decision was qualified with “at least” may pave the way for other, similar references to the CJEU.