Thursday 7 February 2013

Court of Appeal takes a punt on database rights

Time flies and the flow of significant copyright cases continues at a pace that makes it hard for even the best-organised of blogging teams to pick up each decision as it comes out, dedicate the depth of care and attention to it which it (and the blog's readership) merits, and then post a polished analysis.  This post on yesterday's 109-paragraph ruling of the Court of Appeal for England and Wales (Lord Justice Lloyd, Lord Justice Lewison and, giving judgment for the court, Sir Robin Jacob) in Football DataCo & Others v Stan James Plc & Others and Sportradar GmbH & Others,[2013] EWCA Civ 27. is therefore a good deal shorter than its content deserves.

The judgment reveals that the appeal covered two separate actions, heard together, on the subsistence and infringement of database right in data relating to football matches. The claims were brought by the English and Scottish Football Leagues and their licensees against Stan James plc, a betting company and Sportradar, an online sports data provider. All parties had appealed various findings by Mr Justice Floyd in his first instance decision of 8 May 2012, noted by the IPKat a day later here.

The proceedings concerned only joint liability aspects of each claim, and the Court of Appeal held as follows, at [106]:
"(a) There is a sui generis database right in FDC's Football Live database; 
(b) Both before and after defence UK punters [not the Oxford and Cambridge sort, but those who place bets] extract a substantial part of that database when they use the pop-up facility on the Stan James website [the reference to 'before and after defence' is to the fact that the defendants changed their practice after they filed their defence];

(c) Both Stan James and Sportradar are joint tortfeasors with the UK punters; and

(d) There are no defences of abus de droit or infringement of Article 10 of the ECHR."
In reaching these conclusions, however, the Court made a number of findings that have potential implications beyond the immediate subject matter of these actions. The judgment seems to provide that a website owner anywhere in the world who hosts a hyperlink that a UK user uses to access infringing content will be jointly liable with that user for the infringing acts. This finding has potentially enormous implications in the sphere of the internet.

The Court of Appeal has also found that a database which qualifies for protection under the database right regime may exist within a literary work which is protected by copyright, there being no conflict in the two rights subsisting simultaneously. As such it seems that literary works can be reclassified as databases by claimants. This may seem fanciful but, in doing so, a copyright owner can strengthen his hand in any dispute. The test for infringement of the sui generis database right is very different to that of regular copyright, since it's directed towards the protection of investment and not creativity. Additionally there are no "fair use" type defences available under the Database Directive. As such, for example, a news reporting agency may claim that database rights underpin its news report and, on that basis, seek to prevent republication by a rival.

1 comment:

Howard Knopf said...

Dear Jeremy:

It is worth noting that the Supreme Court of Canada has recently held in the context of defamation that “Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content.” See a short analysis with links to the judgment here:

As well, the Federal Court of Canada has recently held that merely linking is not copyright infringement. Again, here is a short take on this with links. That judgment is being appealed, but not as far as I know on the linking point.

As to the overall database issue, the EC Directive is apparently continuing to cause much mischief and little if any benefit. It’s also worth noting that Canada and the USA have no database protection laws. Indeed, our Courts have clearly ruled against any attempts to achieve such protection. The best example is Feist, of course in the SCOTUS. I don’t think that anyone is suggesting that enterprises such as Thomson/Reuters, Bloomberg, etc. are suffering because of this void.

Best regards,