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 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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