Database Rights and Location of Infringement - Football Dataco/Sportradar Case Referred to ECJ

The UK Court of Appeal has asked the European Court of Justice (“ECJ”) to clarify the law regarding database rights and in particular whether ‘online publishing’ takes place where the server containing the data is hosted or where it is read, following a claim by a prominent UK sports database rightsholder that a foreign company copied its statistics. The ECJ’s decision will determine whether the UK sports database rightsholder can bring an action in the UK or whether it has to sue in the foreign courts where the server is based.

The case involves a dispute between Football Dataco (a joint venture subsidiary of the Premier League and the Football League which manages the data interests of the English and Scottish football leagues and has the online publishing rights to those sports properties) and Sportradar (a Swiss based company which provides data to the betting industry). Football Dataco accused Sportradar of copying statistics from its live match data, including statistics about goals, scorers, penalties and substitutions.

The ECJ has been asked to clarify whether the re-utilisation of database content under the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (“Database Directive”) occurs where the defendant’s data-containing servers are based (in this case in Austria and Holland) or whether the re-utilisation occurs where the data is downloaded by website users (including in the UK).

Football Dataco has argued that the distinction between where its information is held and where it is viewed is, in part, irrelevant, since a transmission of information involves both the sending and receipt of information, so that the receiving of it in the UK means, per se, that the infringement of its database rights has occurred, in part, in the UK.

If the ECJ’s ruling follows the judgement of the High Court and limits the cause of action in such cases to the location where the server was placed, then owners of database rights and copyright will be left with little redress in the UK where infringing data is held on servers in other countries. The ECJ’s ruling is awaited although it is unlikely to be handed down until the end of 2011 on what the Court of Appeal has dubbed ‘a very important and difficult question’.

Our previous Sports Briefing Note provides more detailed information about the protections now afforded to such databases in light of a separate case brought by Football Dataco against Brittens Pools Ltd, Yahoo UK! Ltd and Stan James (Abingdon) Ltd available by clicking here.