On the 18th October 2012, the CJEU handed down its decision in Football Dataco Ltd v Sportradar GmbH and another in which it provided guidance on the location of sui generis database right infringement where data is transmitted over the Internet from one territory to another. The decision will be welcomed by rights holders as it clarifies their ability to bring action directly against providers of infringing data in the territory within which the data was downloaded as opposed to locating and bringing action where the hosting server is located.
On 29 March 2011, the Court of Appeal referred several questions to the CJEU regarding the interpretation of the Database Directive (96/9/EC) where defendant servers are based in a different jurisdiction from the one in which an end user accesses the relevant data. These questions sought clarification on whether infringing acts took place in the territory within which the relevant servers were based, or the territory within which the data from such servers was downloaded. The answer provided by the CJEU is that infringement can take place in the territory within which the data was downloaded, provided that there is sufficient evidence to suggest that the defendant intended to target users in that territory. The decision is generally in line with the Advocate General's opinion on the case delivered on 21 June 2012.
This case provides guidance in circumstances where there is doubt as to whether an infringing act was committed in the UK or elsewhere in the EU. The significance of identifying and bringing action where a server is based has diminished and greater opportunity for redress is available to rights owners that are faced with infringement of their sui generis database rights on servers which have been strategically positioned in difficult jurisdictions. The court recognized the inherent difficulty in identifying server locations with sufficient certainty and has provided a practical solution to this issue.
Although it relates specifically to sui generis database rights, this case is likely to have knock-on implications for copyright and the analogous issue of identifying the location of a "communication to the public" in the context of infringing material downloaded from the Internet. Although a cause of action on the grounds of authorisation may exist where infringing material is made available in the UK by a person in another jurisdiction, this case opens the door for rights holders to bring action for direct infringement of their copyright, provided that there is sufficient evidence to indicate that users in the UK were targeted. The location of acts of transmission involving the Internet has been a particularly unclear area of law with respect to copyright infringement; this case should provide some clarity on the matter.
Facts of the case
Football Dataco Limited and others organise football leagues and competitions in England and Scotland and create databases of live data relating to football matches. Sportradar, a German company, provided a service over the Internet from servers located in Germany and Austria which displayed results and fixtures relating to English football matches to UK based customers. Football Dataco Limited brought an action in the UK alleging that Sportradar extracted information from its database and infringed its sui generis database rights. Sportradar challenged the jurisdiction of the UK court and applied for a declaration of non-infringement. The issue surrounded the application of the sui generis database right in preventing the "extraction and/or re-utilisation" of the contents of a database. Sportradar argued that the act of uploading the protected information to its servers and transmitting it constituted re-utilisation only in the territory within which the server was situated.
However, Football Dataco Limited argued that Sportradar's acts of transmission to customers in the UK constituted an extraction by transferring data from one medium to another, and re-utilisation by transmitting that data to the public. It alleged that these acts took place in the UK, as that was the Member State to which those acts were directed.
The CJEU was asked to address the following questions:
Where a party uploads data from a database protected by the sui generis database right onto a web server located in Member State A and in response to requests from a user in Member State B, that server sends data to a user's computer, which is then stored in its memory and displayed on a screen:
- is the act of sending data an act of "extraction" or "re-utilisation" by that party?
does any act of extraction and/or re-utilisation by that party occur
- in Member State A only;
- in Member State B only; or
- in both Member States?
The CJEU held that the transfer of data in this manner constituted an act of re-utilisation by such party and that act took place in Member State B in circumstances where there is evidence from which it may be concluded that there is an intention on the party sending such data to target members of the public in Member State B.
Whether there is sufficient evidence in this case has been left as a matter for the national court to assess, but the CJEU suggested that evidence to consider may include the subject matter of the data being sent (in the present case it was data relating to English Football League matches), any rights of access granted to third parties (including the location of such third parties) and the language of the data made available.
The full judgment can be accessed here.