Allowing Sportradar’s appeal in part, the Court of Appeal of England and Wales has ruled that Dataco’s copyright claim in relation to a database of football statistics failed because what was allegedly copied was “mere data”, not the database itself. Lord Justice Jacob, however, dismissed Sportradar’s appeal on jurisdiction over database right infringement claims insofar as they were based on allegations that Sportradar were joint tortfeasors with its UK customers. Further and most significantly, on the question of primary infringement by Sportradar of Dataco’s database rights, Jacob LJ has decided to refer the reutilisation issue to the Court of Justice of the European Union (CJEU).
Dataco creates and exploits data relating to football matches in the English and Scottish leagues. Sportradar provides live scores, results and other statistics relating to football and other sports, including UK football matches, to the public via the internet. A number of Sportradar’s customers provide betting services for and aimed at the UK market. In Football Dataco Ltd and others v Sportradar GmbH and another  EWHC 2911 (Ch) Dataco argued that Sportradar copies data from Dataco.
Sportradar denied copying and commenced proceedings against Dataco in Germany, seeking declarations that its activities did not infringe Dataco’s rights. Sportradar contended that the English proceedings did not disclose a “good arguable case” against the company and so the German court is the court first seised with the dispute.
Jacob LJ accepted Sportradar’s submission that the data alleged to have been copied (goals, goal scorers, etc.,) were matters of fact that were precluded from copyright protection as mere “contents” of a database. It followed, therefore, that when the proceedings started, the English court was not seised of a claim in copyright to the necessary standard.
Database Right: Joint Tortfeasorship
The issue here was not subsistence of database rights but whether Dataco’s claim identified properly any cause of action justiciable in the English courts. Jacob LJ agreed with Dataco’s submissions, finding that the English courts were first seised of the dispute insofar as Dataco’s claim alleged that Sportradar was joint tortfeasor with businesses in the United Kingdom over which the court had jurisdiction. If Dataco was right about copying, it was arguable clearly that Sportradar and its customers were acting in concert to enable access in the United Kingdom to the copied data.
Database Right: Primary Infringement
On the question of primary infringement, Jacob LJ decided to refer to the CJEU questions on the meaning of “reutilisation” under Article 7.2 of the Database Directive (96/9/EC). Dataco’s claim of primary infringement by Sportradar turned on the definition of infringement in the Directive, which includes transmission.
Transmission over the internet, in Dataco’s submission, involves both the acts of hosting the website and also the act of the user in accessing it. Sportradar’s case is that acts of transmission occur only in the place from where the data emanates. Jacob LJ decided that “this very important and difficult question” should be referredto the CJEU.
Dataco’s claim that Sportradar is directly liable for breach of database right is now stayed pending the outcome of the reference to the CJEU, whilst its claim in joint tortfeasorship, which is not dependent on the questions asked, is allowed to proceed. Given the far reaching consequences of a decision that transmission can “occur” where the user accesses the information, the CJEU’s view is eagerly anticipated.© 2013 McDermott Will & Emery
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