Online database infringement occurs both where sent and received

Advocate General Cruz Villalon gave his Opinion yesterday in Case C‑173/11 Football Dataco Ltd, The Scottish Premier League Ltd, The Scottish Football League, PA Sport UK Ltd v Sportradar GmbH and Sportradar AG, a reference to the Court of Justice of the European Union from the Court of Appeal, England and Wales.

The note that appears below has been sent in by John Wilks of DLA Piper. John is part of the team that acted for Football Dataco and the other claimants.

What was referred

This was a reference to the CJEU from the English claim brought by Football Dataco and others against sports data supplier Sportradar, relating to the use of data collected live during English and Scottish football matches.  Sportradar sought to avoid the jurisdiction of the English courts, arguing that the infringing act of "re-utilisation" of the claimants' database could only take place  in the Member States in which its servers were situated.  The Database Directive defines "re-utilisation" as "any form of making available to the public", and the key question for the CJEU was whether the relevant data was made available in Austria (the place of "emission", where Sportradar's servers were), in the UK (the place of "reception", where the internet users targeted by the website hosting the data were), or both.  

What the AG Thought

The Advocate General considered that "The act of sending [the data] by Sportradar … is one of the necessary component parts of [the act of making available to the public] and…must therefore be regarded… as being in the nature of ‘re-utilisation’".  He expanded on this by saying "the term ‘re-utilisation’ would include the collection of acts which, in this case, starting with the ‘sending’ of data from Sportradar’s server and ending with the acts performed by the betting companies, culminates in the customers of those companies having access to the data sent".

He went on to explain the policy reasons behind his conclusion, that "In the context of the internet, the categories of ‘emission’ and ‘reception’ become highly relative as criteria for determining the ‘location’ of the points between which there is an act of communication. Categories based on concepts, such as time and space, the meaning of which becomes highly ambiguous in the world of virtual reality, are rendered ineffective by the networked configuration of a global communication medium". 

The Advocate General also rejected as "highly questionable" the idea that the more specific provisions relating to where copyright infringement occurs in a broadcasting context (the so-called "emissions theory") should be applied to online infringement.  This conclusion (if followed by the CJEU) could be of broader relevance to areas of copyright where there is debate as to whether case-law relating to broadcasting should be applied to the online world.

The Advocate General also dismissed as "misplaced" some submissions made to the court by the Portuguese and Belgian governments on the issue of subsistence of database right in live football data, which was not the subject of the reference at all.  

Further thoughts 

... If the Court follows the AG's Opinion, the ... High Court will have jurisdiction to rule on the issue of whether Sportradar is liable for primary infringement for the act of making its original service available to people in the UK.  More broadly, the decision is in line with the policy applied by the CJEU to questions of jurisdiction involving the internet in the earlier personality rights case of eDate (decided by the same Advocate General and referred to in this opinion), which concluded that the claimant could sue either where the publisher was based or where the affected claimant was based.

What does this all mean? John's colleague Simon Levine (IP partner, DLA Piper) explains:

"If followed by the court, the Opinion will bring good news to database right and copyright owners throughout Europe. While it was expressed as limited to the EU database right, it is hard to see why the logic behind it would not apply equally to copyright infringement on the web. Its implications are that website owners will not be able to escape the jurisdiction of the national courts of the content owner by locating themselves in a jurisdiction where it is more difficult for them to be sued".