On 18 October 2012, the EU Court of Justice ("CJ") rendered its decision in Football Dataco v Sportradar (C-173/11). The CJ ruled that the (online) use Sportradar et al. make of Football Dataco's data is considered unauthorised re-utilisation within the meaning of Article 7 of Directive 96/9/EC (the "Database Directive")[i]. Re-utilisation is defined very broadly. The CJ also ruled that database infringement takes place, at least, in the Member State particularly targeted by the re-utilisation. The CJ provides some guidelines for determining whether infringement is targeted at a Member State.
Football Dataco v Sportradar concerns the database Football Live, a compilation of data collected live during English and Scottish football matches. Football Live is exploited by the UK company Football Dataco, the database right holder. The German company Sportradar GmbH provides an online service with live statistics relating to fixtures in the English league (‘Sport Live Data’) and sells this data to customers who in turn provide services such as online betting targeting the UK market. Football Dataco et al. claim that the information provided by Sportradar's online product Sport Live Data was extracted from Football Live, and seek compensation from Sportradar et al. in UK proceedings for the damage arising from the infringement of their database rights. Sportradar et al. argued (i) that their acts do not constitute (extraction or) re-utilisation and (ii) that there is no infringement in the UK as the act of re-utilisation of the database only takes place in the Member State where the web server is situated from which the data in question is sent.
"Re-utilisation" also covers online data transfer
The CJ stressed that the concept of re-utilisation must be understood broadly, extending to any act of distribution to the public of the whole or a part of the contents of the database not authorised by the right holder of the sui generis database right[ii]. The nature and form of the process used are of no relevance whatsoever. Sportradar et al.'s acts fall within this broad definition: sending data from a web server to a user's computer also infringes the database right.
Where does database infringement take place?
The location of the infringement is relevant as there are no unitary database rights; rights are limited to national territories. In case the infringing act is not considered to take place in the UK, Sportradar would not infringe Football Dataco's right. Sportradar's argument that an act of re-utilisation takes place exclusively in the territory of the Member State where the server is located was rejected. The CJ ruled that the infringing re-utilisation act takes place "at least" in the Member State at which the infringer targets his acts. It is for national courts to assess whether the infringer has an intention to target the public in that territory. It follows from the CJ's decision that such evidence may (for example) be found in the circumstances that:
- the data concerns information relating to a particular Member State
- the infringer was or must have been aware of the (final) destination of the data sold to its customers, and
- an additional language is used (matching the target public).
This decision is good news for database right holders because it confirms that the database right also applies to re-utilisation on the internet while also a very broad definition of re-utilisation is prescribed. The processing of those data does not provide an escape for the infringer. The ruling implies that digital infringers of databases cannot avoid infringement by locating their server in a jurisdiction where it is difficult for them to be sued (e.g. outside of the EU) or by making it very hard to locate their server at all. It is interesting that the CJ ruled that the infringing act takes place "at least" in the Member State of the country at which the infringing act is directed. The referring court had asked specifically to clarify whether the infringing act (also) takes place in the country where the server is located but this issue was not addressed[iii] (whereas the Advocate General recommended that the CJ conclude that the infringing act takes place there as well).
[i] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases
[ii] Reference is made to Case C‑203/02, British Horseracing Board and Others, paras. 45, 46, 51 and 67.
[iii] Apart from the CJ's reference to the Advocate General's observation that re-utilisation by means of a web server is characterised by successive operations, starting from the placing online of the data concerned and which may take place in the territory of different Member States in consideration 34.