FD created and exploited data relating to English professional football matches. It owned and operated a database called ‘Football Live’, which provided an online service with scores and other match details live while the matches were being played. Sportradar was a Swiss and German group that provided a competing online service called ‘Sport Live Data’ from servers based in Germany and Austria. They had customers based in the UK. FD claimed that its copyright and database rights had been infringed by copying by Sportradar. The case involved a trial of a preliminary issue relating to whether the main trial could take place in the English courts. On a number of points including whether Sportradar had joint liability or had authorised the infringement by UK based customers, the High Court said that the case could proceed to trial in the English courts.
Of most interest is the ruling regarding where infringement takes place. In relation to the alleged database right infringement for the original re-utilisation of FD’s database – meaning the act of making the database available to the public – the High Court said this had taken place where the apparatus was situated and therefore where the servers were based in Germany and Austria. Even though the data could be available for access to customers in another place (eg the UK), that did not mean that the act of database right infringement took place where the data was received.
Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: ‘In cases of defamation, English courts assume jurisdiction for material uploaded in another country if it has a defamatory impact against someone who has a reputation in England. However, no similar rule applies for intellectual property rights. This case shows that English courts will not take any action for the unauthorised uploading of material if the act of uploading is done in another country. This ruling is a bad result for rights owners as it can only serve to encourage infringers to locate their servers in jurisdictions where the law is less strict. That said, as this case shows, rights holders can still pursue those involved with subsequent acts of infringement, although such a right gives only a partial victory as it still does not enable them to deal with the original source.’