Football Dataco and others v Sportradar GmbH and another, European Court of Justice
The European Court of Justice (ECJ) has given a ruling that has international ramifications for anyone targeting database usage within the European Union. It was responding to questions referred to it by the Court of Appeal in a case relating to the alleged infringement of database rights in football match statistics. Football Dataco (FDL) created data for professional football matches in England and created an online database that updated as a match was played. Sportradar offered a competing service from servers in Austria and Germany but with users in the UK, and FDL issued proceedings alleging that Sportradar had infringed its copyright and database rights by the copying of FDL’s data. The High Court had originally ruled in favour of Football Dataco, but there were different parts of the ruling that both sides did not like, so there was an appeal by both parties.
The Court of Appeal sent a reference to the ECJ in relation to the query of where the infringement of the database rights took place. The referral relates to the definition of ‘extraction’ and ‘re-utilisation’ under the Database Directive (which was implemented in the UK by the Copyright and Rights in Databases Regulations 1997). More specifically, it queried whether a party uploading data from a database in one European Union member state who then sends that data to a user in another member state is considered to have taken part in ‘extraction’ or ‘re-utilisation’, and, in particular, asked for confirmation of where that ‘extraction’ or ‘re-utilisation’ should be considered to have occurred. An Advocate General, an advisor to the ECJ but whose recommendations are not binding on the ECJ, gave an opinion that the infringing act should be considered as occurring in all member states where a necessary act in the chain of re-utilisation took place.
The ECJ has ruled that sending data uploaded from a database to the computer of another person for storage of that data and display on the computer screen is an act of re-utilisation by the sending party where the database is subject to a database right under European Union law. The ECJ also ruled that the act of re-utilisation takes place in the member state of the receiving party provided that the sending party had the intention for the data to be available in that member state. It took a constructive interpretation of the law to stop it from being circumvented merely by hiding the servers.
The ECJ’s ruling shows that operators must intend to send data to users of a particular member state in order to be the subject of database right infringement claims in that member state; the ruling is therefore narrower than the Advocate General’s opinion, which said that the claim could be made in all member states where a necessary part of the re-utilisation had occurred. The Advocate General’s opinion would have placed too high a burden on website operators. The ECJ’s ruling suggests that Sportradar could now be faced with liability for database right infringement for re-utilisation when the case goes back to the Court of Appeal. Sportradar had a service that was interesting for English individuals, its customers were businesses offering betting services who would target those individuals, and the service was in English.
The ECJ’s ruling is certainly interesting as it shows that action can be taken for infringement of a database right where the operator intended to send data to users in a particular member state. However, the ECJ does not clarify what the position would be where the data is being downloaded by users within a member state but where the operator’s servers are located outside of the EU altogether. Would an operator avoid the risk of infringement proceedings being brought? It is possible to infer from the ECJ’s ruling that, regardless of where servers are based, action can be taken against the operator if the data was focused at users in a member state who then download the data, but that certainly was not stated explicitly in the ruling. In that case, the judgment would have repercussions far beyond the EU. We could expect that such a situation will end up before the ECJ at some point.