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On 18 October 2012, the EU Court of Justice
("CJ") rendered its decision in
Football Dataco v Sportradar (C-173/11). The CJ ruled that the (online)
use Sportradar et al. make of Football Dataco's
data is considered unauthorised re-utilisation
within the meaning of Article 7 of Directive 96/9/EC (the
"Database Directive")1.
Re-utilisation is defined very broadly. The CJ also ruled that
database infringement takes place, at least, in the Member State
particularly targeted by the re-utilisation. The CJ provides some
guidelines for determining whether infringement is targeted at a
Member State.
Case background
Football Dataco v Sportradar concerns the database
Football Live, a compilation of data collected live during
English and Scottish football matches. Football Live is
exploited by the UK company Football Dataco, the database right
holder. The German company Sportradar GmbH provides an online
service with live statistics relating to fixtures in the English
league ('Sport Live Data') and sells this data to customers
who in turn provide services such as online betting targeting the
UK market. Football Dataco et al. claim that the information
provided by Sportradar's online product Sport Live
Data was extracted from Football Live, and seek
compensation from Sportradar et al. in UK proceedings for the
damage arising from the infringement of their database rights.
Sportradar et al. argued (i) that their acts do not constitute
(extraction or) re-utilisation and (ii) that there is no
infringement in the UK as the act of re-utilisation of the
database only takes place in the Member State where the web
server is situated from which the data in question is sent.
"Re-utilisation" also covers online data
transfer
The CJ stressed that the concept of re-utilisation must
be understood broadly, extending to any act of distribution to the
public of the whole or a part of the contents of the database not
authorised by the right holder of the sui generis
database right2. The nature and form of the process used
are of no relevance whatsoever. Sportradar et al.'s acts fall
within this broad definition: sending data from a web server to a
user's computer also infringes the database right.
Where does database infringement take place?
The location of the infringement is relevant as there are no
unitary database rights; rights are limited to national
territories. In case the infringing act is not considered to take
place in the UK, Sportradar would not infringe Football
Dataco's right. Sportradar's argument that an act of
re-utilisation takes place exclusively in the territory of
the Member State where the server is located was rejected. The CJ
ruled that the infringing re-utilisation act takes place "at
least" in the Member State at which the infringer targets
his acts. It is for national courts to assess whether the
infringer has an intention to target the public in that territory.
It follows from the CJ's decision that such evidence may (for
example) be found in the circumstances that:
the data concerns information relating to a particular Member
State
the infringer was or must have been aware of the (final)
destination of the data sold to its customers, and
an additional language used (matching the target public).
Practical Relevance
This decision is good news for database right holders because it
confirms that the database right also applies to re-utilisation on
the internet while also a very broad definition of re-utilisation
is prescribed. The processing of those data does not provide an
escape for the infringer. The ruling implies that digital
infringers of databases cannot avoid infringement by locating their
server in a jurisdiction where it is difficult for them to be sued
(e.g. outside of the EU) or by making it very hard to locate their
server at all. It is interesting that the CJ ruled that the
infringing act takes place "at least' in the
Member State of the country at which the infringing act is
directed. The referring court had asked specifically to clarify
whether the infringing act (also) takes place in the country where
the server is located but this issue was not addressed3
(whereas the Advocate General recommended that the CJ conclude that
the infringing act takes place there as well).
Footnotes
1 Directive 96/9/EC of the European Parliament and of the
Council of 11 March 1996 on the legal protection of
databases
2 Reference is made to Case C-203/02, British
Horseracing Board and Others, paras. 45, 46, 51 and
67.
3 Apart from the CJ's reference to the Advocate
General's observation that re-utilisation by means of a web
server is characterised by successive operations, starting from the
placing online of the data concerned and which may take place in
the territory of different Member States in consideration
34.
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