The High Court recently clarified the meaning of “making available to the public” in section 20 of the Copyright Designs and Patents Act 1988 (“CDPA”) and Regulations 12 and 16 of the Copyright and Rights in Databases Regulations 1997 (“the Regulations”). In doing so, it also clarified when the UK courts will have jurisdiction over a claim relating to data held on servers outside the UK.
The case was Football Dataco Limited and others v Sportradar GmbH and Sportradar AG  EWHC 2911 (Ch). Football Dataco (“Dataco”) was responsible for organising professional football matches across the UK and it compiled a database of key statistics from these matches (including goals scored, goalscorers, penalties, yellow and red cards and substitutions). The data was ‘live’ as it was updated and provided to third parties while the matches were taking place. This database was known as ‘Football Live’.
Sportradar GmbH and Sportradar AG (“Sportradar”) were German and Swiss companies respectively and provided a competing service to Dataco. They compiled a database of live scores, results and other statistics relating to UK football matches and provided this information to customers via its website at betradar.com. Sportradar’s database was known as ‘Sport Live Data’. This data was stored on servers in Germany and Austria but could be accessed anywhere in the world via the betradar.com site, including the UK. Bet 365 and Stan James were two of Sportradar’s UK customers. They each provided a live score option on their own websites which, when clicked on by their customers, displayed data from the Sport Live Data database.
Dataco alleged that Sportradar was copying data from Football Live to include in Sport Live Data and brought proceedings for infringement of UK copyright (contrary to section 16 CDPA) and database right (contrary to regulation 16 of the Regulations). Section 16 CDPA prohibits the copying of a copyright work. Regulation 16 of the Regulations provides that “a person infringes database right in a database if without the consent of the owner of the right he extracts or re-utilises all or a substantial part of the contents of the database”. Regulation 12 defines “extraction” as “the permanent or temporary transfer of the [contents of a database] to another medium by any means or in any form” and “re-utilisation” as “making the [contents of a database] available to the public by any means”. Dataco also asked the court for permission to amend its statements of case to include a claim under section 20 CDPA which provides that making a copyright work available to the public by electronic transmission amounts to infringement of the copyright in it. Ultimately, for the reasons given below, permission was not granted.
The court initially had to decide whether it had jurisdiction over the claim. This was governed by the Brussels and Lugano Conventions and required Dataco to have a ‘good arguable case’, otherwise Sportradar must be sued in its state of domicile (Germany or Switzerland).
The court held that, because Sportradar was based in Germany and Switzerland, it was not committing any acts at all in the UK, let alone acts of copyright and database right infringement. In fact, the acts of infringement were being carried out by its customers, Bet 365 and Stan James. Each time their customers clicked on their websites’ live score option, content from Sport Live Data (including, arguably, data unlawfully copied from Football Live) was reproduced on the screens of their customers. These were acts in the UK that could amount to copying under section 16 CDPA and extraction under regulation 16 of the Regulations. However, neither Bet 365 nor Stan James was a party to the proceedings. In respect of Sportradar which was being sued, the only claim that Dataco could have was for authorising the copyright infringement by Bet 365 and Stan James or for being jointly liable with Bet 365 and Stan James for copyright and database right infringement via extraction. Neither of these claims required Sportradar to be in the UK to commit them. In the end, the court found that Dataco had a good arguable case against Sportradar in respect of authorising copyright infringement and joint liability with Bet 365 and Stan James for copyright and database right infringement via extraction and held that it had jurisdiction over these issues.
The court went on to consider whether Sportradar was infringing section 20 CDPA or regulation 16 of the Regulation by re-utilisation. This turned on the meaning of ‘making available to the public’ used in both pieces of legislation and, in particular, ‘making available to the public via online transmission’ which was what was happening in this case. The High Court held that the act of making available to the public by online transmission was committed and committed only where the transmission took place. This meant the place in which the servers were located (Germany and Austria) and not the place of reception of the transmission of data (the UK). Therefore, there was no ‘making available to the public’ in the UK by Sportradar and so the court declined jurisdiction over this aspect of Dataco’s claim. It also refused to allow Dataco to amend its statements of case to include a claim under section 20. Although the court acknowledged the importance of its ruling on the place where the act of making available by online transmission occurs, both to the parties in this case and generally, it declined to refer the matter to the Court of Justice of the European Union for its opinion on this issue.
This judgment is interesting because the High Court defined for the first time the meaning of ‘making available to the public by online transmission’ used in both the CDPA and the Regulations. It is clear that there will be no such act where data is transmitted to the UK using servers based abroad. Where this is happening, the UK courts will not have jurisdiction over a claim for copyright or database right infringement. This somewhat limits the rights of UK copyright owners whose work may be being copied abroad and transmitted online to recipients in the UK. Following this judgment, little can be done about this in the UK courts. The copyright owner would need to bring proceedings in the country in which the servers are located or where the infringer is domiciled. This makes the life of UK copyright owners difficult; the vagaries, differing language and costs of a foreign jurisdiction will have to be contended with.