The English finally win a European football final – albeit in the Courts, not on the pitch

Advocate General Cruz Villalón of the European Court of Justice has recently provided advice to the English Court of Appeal on where acts of “extraction” and “re-utilisation” take place over the internet, for the purpose of determining whether a sui generis database right has been infringed.  The Advocate General’s judgment may be found here: Football Dataco Ltd and Others v Sportradar GmbH and Other [2012] CJEU C-173/11.  The Advocate General found that where a website operator infringes the sui generis “database right” of a third party by displaying material on its website, the operator will infringe the database right in both the country in which the server hosting the website is located, and also in the country(ies) in which the information has been accessed by internet users.  If the advice is followed, English courts will have jurisdiction to hear sui generis database infringement matters involving foreign companies, including Australian companies.

The Sportradar proceeding is the latest in a series of cases instigated by Football Dataco and the organisers of the English and Scottish football (read: soccer!) leagues.  In these cases, Football Dataco and the football leagues have asserted both copyright and sui generis database rights in databases containing the leagues’ football fixture lists and other statistical information relating to football matches.  For a discussion on the distinction between database copyright and the sui generis database right, and the previous Football Dataco cases, click here, here and here.

In this case, Football Dataco and the football leagues claimed that Sportradar GmbH (“Sportradar”) had infringed their rights in the ‘Football Live’ database.  Football Live is a database containing information about football matches in progress (for example, goals and goal scorers, the names of the players on the pitch, yellow and red cards, substitutions, etc).  Sportrader, a company registered in Germany, provides live football results and other statistics relating to football games (including English and Scottish league games) to the public via its website, in a service known as ‘Sport Live Data’.  The website is hosted in Germany, but is accessible in the UK and, through private agreements between Sportrader and some UK betting companies, was targeted at the UK market and actually accessed by consumers in the UK. 

Football Dataco and the leagues alleged that Sportrader had extracted information from their Football Live database and then published that information on the internet via its Sport Live Data service, thereby infringing their database right. 

The question for the European Court of Justice to determine was: where a party in EU member state A (i.e. Germany) uploads data from a database protected by the sui generis database right onto its website and, in response to requests from an internet user in EU member state B (i.e. United Kingdom) sends that data to the internet user’s computer, is the act of sending the data an act of “extraction” or “reutilisation” as defined in the European Database Directive. And, if so, does that act of “extraction” or “re-utilisation” occur in country A, B or both.

The Advocate General advised that the act of sending the information from Sportradar’s website (physically located on a server in Germany) to individual consumers (located in the United Kingdom) through the UK betting companies’ websites constitutes an act of “re-utilisation”; and that such an act takes place in both country A and B because the material is accessible in both the country in which it was sent and received.        

Whilst the Advocate General’s advice was expressed as limited to the European database right and is not determinative, the English courts usually follow such advice. The advice is consistent with the Court of Justice’s policy on questions of jurisdiction over internet concerns, also applied in eDate Advertising [2011] CJEU c-509/09, which allows a claimant to sue either where the publisher is based or where the affected claimant is based.    

If the advice is followed, there is a possibility that English courts will have jurisdiction to hear database infringement matters involving companies located in countries which have not adopted the European Database Directive, including Australia.  Whilst no database right exists under Australian law, and recent Australian case law has called into question the scope of copyright protection for factual databases, website operators in Australia may nevertheless find themselves subject to the jurisdiction of European courts if they reproduce information on their website, which they have extracted from a database protected by the European Database Directive.