One of the most obvious features of the internet is that it is possible to view a webpage hosted in one location in an entirely different location. In fact, you could say that’s the whole point of the internet. So perhaps the first legal question that springs to mind is: what law applies to the internet – the law of the country where a site is hosted or the law of the place where the site is viewed or both? Though the Web has just celebrated its 20th anniversary, the English courts have only just come up with their answer to this question. But did they get it right?
On Wednesday Mr Justice Floyd held that a website's copyright infringement takes place where the site is hosted, not where it is viewed. He was persuaded by the fact that the right in question is known as the ‘making available’ right – it’s the making available that counts, he said, not the receiving. Such a literalistic approach might have led him to the opposite result: the legislation also speaks of ‘communicating to the public’ and communicating usually takes two. Courts across Europe have taken different views on this subject and the delegates to WIPO who penned this right say it takes place both at the place of upload and download. Floyd J said the question was important and not acte claire but opted not to refer the question to the European Court.
This conclusion was reached as part of an interim judgment in the proceedings of Football Dataco v Sportradar. Sportradar GmbH hosts live sports statistics on its servers in Vienna. Football Dataco say Sportradar are copying their data. They argue that when members of the British public view Sportradar’s sites (via betting sites), Sportradar is infringing Football Dataco’s UK copyright and database right.
At this interim stage, Floyd J was determining only whether the English court had jurisdiction: whether there were potentially UK copyright or database infringements. His conclusion was that members of the public who view any infringing material on Sportradar’s site would have primary liability for reproducing it on their computer screens. He found there was a plausible case that Sportradar was authorizing any UK customers’ copyright infringement and was jointly liable for their copyright and database infringements.
The judge did seem a little sceptical as to whether Football Dataco would ultimately show that what is a collection of football scores, red cards etc would attract copyright protection. The database right claim sounds stronger: according to Dataco’s website ex-professional footballers are employed to work as analysts at every game, which I suppose they must find pretty gruelling.