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Database right - Advocate General publishes opinion in Football Dataco case

The Advocate General (‘AG’) has issued an interim opinion in the case of Football Dataco and others v Sportradar GmbH and others.[1]   The opinion, released on 21 June 2012, assesses the meaning of ‘re-utilisation’ and ‘extraction’ in the context of database right[2] and analyses in which jurisdiction the infringing act takes place.

Background

 
The case concerns real-time data relating to football matches, including scores, penalties and player substitutions.  The claimants were parties responsible for organising football leagues and competitions in England, including the creation and management of the data relating to the games, stored on their ‘Football Live’ database.
 
The defendants were German companies which supplied a competing service to that of the claimants, by providing live results and other English league statistics through their website, including to betting agencies.  Their data (‘Sport Live Data’) was stored on webservers in Germany and Austria, but could be accessed via links from elsewhere, including from the UK.  The Sport Live Data was compiled by the defendants through various means, including by monitoring online textual sources.  These sources included data which had originated with the Football Live database.
 
The claimants alleged that, in assembling their Sport Live Data, the defendants were copying data from Football Live without their consent, amounting to infringement of their database right.[3]  They alleged primary infringement, as well as alleging that the defendants were jointly liable for database infringements carried out by the defendants’ customers.
 
The defendants accepted that there was a potential chain of supply from the Football Live data into their Live Score database, but disagreed with the claimants regarding the extent of use and also subsistence of database right.  They also argued that the court had no jurisdiction to hear claims relating to their primary liability of database right, as they had not carried out infringing acts in the UK.
 
Proceedings before the High Court and Court of Appeal
 
In the first stage of the proceedings, the English High Court[4] ruled that it had jurisdiction to hear the claims relating to joint liability of the defendants and their customers[5], but did not have jurisdiction in relation to the claim of primary infringement by the defendants.
 
This was on the basis that the infringing act in question (being the act of re-utilisation) was not being carried out in the United Kingdom.  The English judge had heard the parties’ submissions as to whether the act occurred in the country in which the data was sent or where the data was received.  He chose the former, stating that:
 
“… placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception".  (emphasis added)
 
Both parties appealed the decision regarding jurisdiction to the Court of Appeal[6], which then referred two questions to the Court of Justice of the European Union (‘CJEU’).  The questions, together with the AG’s responses, are summarised out below.
 
Question 1: Should the defendants’ use of the data be classified as an ‘extraction’ or a ‘re-utilisation’, when assessing infringement of database right
 
The AG concluded that the terms extraction and re-utilisation must “be interpreted as referring to any act of appropriating and making available to the public, without the consent of the maker of the database, the results of his investment, thus depriving him of revenue which should have enabled him to redeem the cost of the investment”.
 
When considering whether the defendants’ acts amounted to a case of extraction or re-utilisation, the AG determined that the act of sending data to a user’s computer (where the data was obtained from a database protected by database right), is an act forming a part of a process of making available to the public, and hence constitutes a re-utilisation within the meaning of Article 7(2) of Directive 96/9. 
 
Question 2: In which jurisdiction does the act of ‘re-utilisation’ take place
 
This location in which infringement takes place is important in a case (such as Football Dataco) which involves the transmission of data across different jurisdictions.  Two traditional communication theories were put forward in the course of the proceedings:
 
·         the emission theory, which suggests that the act of re-utilisation was performed at the location of the defendants’ server from which the information was sent
·         the transmission or reception theory, which would say that the re-utilisation took place in the UK, where the customers received the data onto their computers (the information having been transmitted by the defendants from outside the UK)
 
The AG made it clear that re-utilisation should be given a construction “tailored to the characteristics of communication via the internet”.  In his view, in this context, 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.  He also said he felt the “usefulness of employing conceptual constructions formulated in the context of broadcasting is highly questionable” and:
 
“categories based 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”.
 
On that basis he concluded:
 
·         in an internet context, re-utilisation is not usually a single act but a succession of acts (starting with the sending of data from the defendants’ server and culminating in the customers in the UK having access to that data)
 
·         the purpose of these acts is the ‘making available’ of certain data
 
·         the succession of acts occur as a result of the actions of individuals located in different Member States
 
·         therefore act of re-utilisation must be regarded as having taken place in each and every one of those Member States
 
Comment
 
Primary infringement of database right is usually easier to establish than a claim that a data supplier is jointly liable for the infringing acts of their customers.  Therefore the question of jurisdiction for infringement is an important one.
 
The AG’s suggestion that infringement may occur at the point of both transmission and receipt, suggests rights holders may bring a claim for primary infringement of their UK database right against both originating and receiving parties (provided at least one of the relevant acts takes place in the UK).  This widens the options for enforcement and will be welcomed by rights holders.
 

The AG’s opinion is interim and will be followed by the decision of the CJEU in a number of months’ time.  Although the CJEU does not have to endorse the decision made by the AG, in practice it often will.  If it does so, rights holders may wish to take a fresh look at their enforcement and exploitation of their database rights.

For more information, please contact Jeremy Harris.

 

 
[1] Case C-173/11.
[2] Established by Article 7 of Directive 96/9/EC.
[3] They also alleged breach of copyright.
[4] Football Dataco Ltd and others v Sportradar GmbH and another [2010] EWHC 2911 (Ch).
[5] The allegations of joint liability was subsequently examined by the High Court in the joined cases of Football Dataco Ltd and others v Sportradar GmbH and another; Football Dataco Ltd and others v Stan James and another [2012] EWHC 1185 (Ch).  The Court found the defendants were not jointly liable for infringements carried out by their customers.   This case also examined subsistence of database right in the Football Live database.
[6] Football Dataco Ltd and others v Sportradar GmbH and another [2011] EWCA Civ 330.