Is the EU a “Community”? Forum shopping and database rights

Football Dataco and The Scottish Premier League are presently locked in litigation against Sportrader GmbH (a German company) and Sportrader AG (a Swiss company).  The claimants, amongst other things, assert database rights in Football Live, a compilation of data about football matches in progress, collected mainly by ex-professional footballers on a freelance basis at relevant matches (truly a case of combining business with pleasure!).  The defendants operate a service called “Sport Live Data” via which provides live scores, results and other statistics, including UK football matches.  The claimants say that the defendants are taking their data from Football Live without permission.  This is denied.
In an interesting UK High Court decision by Justice Floyd handed down last week, the Court rejected the defendants’ jurisdictional challenge.  The defendants had claimed that the case should be heard in Germany, not the United Kingdom.  As the Court put it:  “On 23rd April 2010 the claimants commenced the present proceedings.  By way of retaliation and in an admittedly forum shopping exercise, on 14th July GmbH alone commenced proceedings against the claimants in the Landgericht, Gera claiming negative declarations that its activities did not infringe any intellectual property rights…“.
However, given that the Database Directive (96/9/EC) is commonly known as the “EU Database Directive”, how can this argument even have arisen? 
Well, it’s a telling reminder that the Directive does not, in fact, create a Community wide right.  Both copyright and database rights created by implementation of the Directive are national rights even though each right has the same scope in each Member State.  Thus, for instance, in the present case there is a UK database right and a corresponding German database right.

It follows that traditional conflicts principles will apply in testing whether or not the United Kingdom is an appropriate forum for the case.  Here, the defendants tried but failed to argue that their activities had no relevant relationship to the UK.   The defendants accepted their activities were carried out abroad, in Germany, Austria (where their server was located), and in Holland (where their back-up server is), but not in the UK.  The Court was not persuaded by this.  It was plain, so the Court found, that the defendants were in the business of providing live scores, results and statistics relating to football to customers, including those in the UK.

Whilst this decision has disposed of the jurisdictional challenge, there remains the substance of the appeal itself.    The main point has been referred to the Court of Justice of the European Union.  For those interested in the technicalities of Article 7 of the Database Directive, it seems we will soon have an answer to what “extraction” and “re-utilization” really mean.  These terms are pivotal to the definition of infringement in the Database Directive: “to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”
The claimants say that these terms are satisfied by the acts of (a) hosting the website; and (b) UK users accessing it.  The defendants claim that such acts only occur from where the data emanates. 
In referring this question, the Justice Floyd observed that the trial judge was attracted to the defendants’ emission theory.  If that is the case, it contrasts to defamation law, which has held in jurisdictions around the world that one should have regard to the “receipt” of a defamatory e-mail message or bulletin board posting, and each display of a defamatory web, in each case as a separate publication, in respect of which a distinct cause of action potentially arises: see M J Collins, the Law of Defamation and the Internet, 3rd Edition, 5.24.

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