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Thursday, 18 October 2012

Football Dataco: the transmission theory may apply…

Today the CJEU held, in Football Dataco v Sportradar (Case C173/11), that the sui generis right* (the database right) could apply under the Database Directive in the country of transmission (the country where the database is re-utilised) if there is evidence that the person re-utilising that data intended to target the public in that country.

Essentially the CJEU is saying that "at least" the transmission theory applies (it does not  specifically address the emission theory), as long as there is evidence of an intention to target users in the country of transmission. This is a win for rightsholders as it prevents infringers from carefully selecting where to place their servers in the hope of avoiding the jurisdiction of the courts of other countries.
Whilst not a copyright case, the CJEU's decision is likely to be used as guidance as to where communication to the public occurs, therefore is also relevant to copyright infringement.

Background
The reference was made in proceedings between Football Dataco and others and Sportradar concerning the alleged infringement by Sportradar of Football Dataco's sui generis right in its football database.

Football Dataco collects football statistics as matches are in progress which it places in a database. It argued that the obtaining and/or verification of that data required substantial investment and that the compilation of the database involved considerable skill, effort, discretion and/or intellectual input.
Sportradar provides live online results and other statistics relating to these matches. Football Dataco claimed that Sportradar obtained this data by copying it from Football Dataco's database. Further, it argued that infringement took place not only in the country from which the data was sent by Sportradar but also in the country in which the users were located, in this case the UK.

Sportradar on the other hand said that its data was generated independently. It argued that in accordance with the emission theory, any act of infringement occurs only in the place from which the data is sent.
Referral to the CJEU

In April 2010 Football Dataco brought proceedings against Sportradar in the High Court for infringement by Sportradar of their sui generis right. Both parties appealed the High Court's decision. The Court of Appeal referred the following question to the CJEU:
"Where a party uploads data from a database protected by the sui generis right under Directive 96/9/EC … onto that party’s web server located in Member State A and in response to requests from a user in another Member State B the web server sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on its screen:

(a)      is the act of sending the data an act of "extraction" or "re-utilisation" by that party?
(b)      does any act of extraction and/or re-utilisation by that party occur
(i)      in A only,
(ii)      in B only; or
(iii) in both A and B?"

The CJEU's decision
The CJEU held that  Sportradar's actions constitute "re-utilisation" of data from Football Dataco's database. They said that while the question of whether Sportradar's actions constitute "re-utilisation" is separate from the question of where that act occurs, the sui generis right is protected by national legislation (albeit that such legislation must implement the Database Directive). Therefore the right is "limited in principle to the territory of that Member State, so that the person enjoying that protection can rely on it only against unauthorised acts of re-utilisation which take place in that territory".

The CJEU went on to say that the mere fact that a website is accessible in a particular country is not a sufficient basis for concluding that the operator of the website is performing an act of re-utilisation in that country. This must be the case because otherwise websites targeted at one country, but accessible in another, could be caught by the laws of that other country.
That said, the CJEU was clear that Sportradar's argument that an act of re-utilisation must in all circumstances be seen as located exclusively in the country from which the data is sent was not right.

The question is whether there is evidence of an intention on the part of the website owner to target users in a particular country.
In this instance the CJEU said that there could be such evidence as the data on Sportradar's server includes data relating to English football league matches; Sportradar granted right of access to its server to companies offering betting services to the public in the UK; and although it is a German company, Sportradar's website is in English. Whether this is sufficient evidence of an intention to target the public in the UK will be for the Court of Appeal to determine.

The CJEU concluded that the Database Directive should be interpreted as meaning that:
"the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer's memory and display on its screen, constitutes an act of 're-utilisation' of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess."

This clarification of where the sui generis right applies will have important consequences on the licensing of rights and on the look and feel of websites. The CJEU's comment that infringement occurs "at least" in the country of transmission where there is evidence that the infringer intended to target the public in that country implies that infringement may also occur in the country of emission. The CJEU's decision does not specifically address this point.
This decision may also be relevant to copyright, as it is helpful guidance on where communication to the public is likely to be deemed to have occurred.

 

*The sui generis right:
The definition of a database is set out at Article 1(2) of the Database Directive as meaning a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

The Database Right, or sui generis right, which is set out at Article 7 of the Database Directive, provides that where there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents of a database, the maker of that database shall have the right to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
The Database Directive goes on to give the following definitions:

 "extraction" means the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form; and
"re-utilisation" means any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission

"Finally the Directive says that the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted. "

This was implemented in the UK by the Copyright and Rights in Database Regulations 1997, which amended the Copyright Designs and Patents Act 1988.

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