The uncertainty surrounding the location of infringement in online publishing cases should soon be clarified by the European Court of Justice (ECJ) following a reference from the Court of Appeal in a recent case relating to database rights.
The case concerned a dispute between two competing sports websites, Football Dataco (a UK company) and Sportradar (a Swiss company, together with its German subsidiary), in which Football Dataco accused Sportradar of copying data from its online database of football scores, penalties and player substitutions.
The claim centred on the Database Directive (96/9/EC) as implemented in the UK by the Copyright and Rights in Databases Regulations 1997, which provides database creators with the right "to prevent extraction and/or re-utilisation".
Football Dataco brought its claim in the UK, arguing that the receipt (and reproduction by customers) of data within the UK meant that extraction and re-utilisation of its database content took place, at least in part, in the UK. Sportradar, however, applied to the German court for a declaration of non-infringement, arguing that the English court had no jurisdiction since, had any infringement occurred, it would have taken place in Germany since that is where its servers are based.
The High Court rejected the argument that it had no jurisdiction to hear the case, but held that extraction and re-utilisation of the database content took place at the location where the server was based, and not where the reader accessed the data. Both sides appealed.
The Court of Appeal agreed that the UK courts had the right to hear the case. However, it decided that it would not be appropriate to form its own view on this "very important and difficult question" regarding the relevance of the location of servers.
The question has been referred to the ECJ, which must now consider the following questions:
Where a party uploads data onto its webserver located in one member state (A), and that webserver sends the data to a user's computer located in another member state (B) so that it is stored in the memory of that computer and displayed on its screen:
- is the act of sending data an act of "extraction" or "re-utilistion" by the party; and
- does any act of extraction and/or re-utilisation by that party occur in A, in B, or in both A and B?
It may be some time before the ECJ delivers its ruling, but the outcome could impact not only database owners, but also copyright owners seeking redress for "communication to the public" infringement, which is likely to be interpreted in light of the ECJ's ruling.
While clarification on the importance of the location of servers will be welcome, if the ECJ follows the High Court's decision it will greatly impact database and copyright owners who could find themselves without redress in the UK in cases where infringing copies are held on servers overseas.
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