The recent AG Opinion in Dataco v Sportradar provides guidance on the jurisdiction in which proceedings can be brought in relation to sui generis database infringement, and potentially the infringing act of communication to the public of a copyright work under Article 3 of the Copyright Directive.
Football Dataco and the other claimants in the proceedings are responsible for organising football leagues and competitions in England and Scotland. Football Dataco has a database called "Football Live" which is a compilation of data about football matches in progress (eg providing information on goal-scorers, the name of players, substitutions, fouls and yellow and red cards). The data is collated by experienced spectators (including ex-players) who are engaged on a freelance basis. Sportradar, a German company, provides live results and other statistics relating to English league fixtures via a service called "Sport Live Data". A number of UK betting companies have websites which link to Sportradar's website and/or have banner pages with the Sport Live Data appearing. Football Dataco and others commenced proceedings in the UK for infringement by Sportradar and the UK betting companies of its sui generis right in the Football Live database. Sportradar challenged the jurisdiction of the UK Court and made an application in a German court for a declaration of non-infringement.
The High Court of England and Wales held that it did have jurisdiction to hear the claim brought by the claimants to the extent of establishing joint liability on the part of the UK betting companies and Sportradar, but it did not have jurisdiction to establish primary liability on the part of Sportradar. Both parties appealed to the Court of Appeal who made a reference to the Court of Justice of the European Union ("CJEU").
Questions referred to the CJEU
The Court Appeal sought a ruling on whether the sending of such data was an act of "extraction" or "re-utilisation" under the Database Directive and as to which territory that "act", if any, takes place: the territory where the server is located or the territory where the user receives the data.
The Advocate General opined that:
- where a party uploads data from a database protected by sui generis right onto that party's web server, and the web server sends that data to a user so the data is stored in the memory of the computer and displayed on the screen, the act of sending the information constitutes an act of "reutilisation" by that party; and
- the act is performed in both the location of the web server and the location of the user.
On the basis of the above, the UK would have jurisdiction.
The Advocate General commented regarding cases involving communications on the internet: "In the context of the internet, the categories of "emission" and "reception" become highly relative as criteria for determining the "location" of the points between which there is an act of communication. Categories base on concepts, such as time and space, the meaning of which becomes highly ambiguous in the world of virtual reality are rendered ineffective by the networked configuration of a global communication medium...". and recognised that "re-utilisation" is not a single act but the sequential succession of a number of acts.
It also worth noting that the act of "re-utilisation" is similar to the infringing act of "communication to the public" under the Copyright Directive, so it will be interesting to see if this reasoning regarding jurisdiction is also applied in copyright cases.
The CJEU's decision is pending.
A copy of the Opinion can be found here.
A copy of the High Court judgment regarding joint liability can be found here.