Decision in Football Dataco Ltd & others v Stan James Plc & others and Sportradar GmbH & another

06 February 2013

Peter Brownlow, Abby Minns

Today the English Court of Appeal handed down its judgment in the above case. The case was brought by certain English and Scottish Football Leagues and their licensees against an online sports data company, Sportradar, alleging infringement of database rights. A separate case was brought against one of Sportradar’s customers in the UK, Stan James, a betting company, who placed a link on its site to Sportradar’s service. Both actions were heard together.

In summary, the Court of Appeal held that sui generis database right subsisted in the Claimants’ Football Live database and that Sportradar and Stan James were jointly liable for the acts of UK users who accessed the data via a link on Stan James’ website. The case is important as it appears to grant broad protection for databases and has significant implications for businesses which use and/or generate data.

The High Court decision

In May 2012, the High Court held that Sportradar was not jointly liable for database right infringement with UK users who accessed its data. The users were also not infringing the Claimant’s database rights by accessing Sportradar's current Live Score service which consisted of details of goals, and the times of goals for English and Scottish football matches. The Court held this did not amount to a substantial part of the Claimants' database. The High Court did decide that users who downloaded Sportradar's data as via Live Score as it was constituted prior to May 2011 were downloading a substantial part of the database, however it held that Sportradar were not jointly liable for such activity.

Court of Appeal decision – 6 February 2013

Both parties appealed those parts of the High Court Judgement that were adverse to them. The Claimants between them administered football in certain English and Scottish leagues and recorded facts (i.e. goals, red cards, yellow cards etc) about its matches in a database, along with data from other matches and other sports, which is maintained by PA. The data is both updated and provided to third parties, such as the BBC while matches are taking place. 

The Defendants are Sportradar GmbH and Sportradar AG, a German and Swiss company respectively and Stan James (Abingdon) Limited and Stand James Plc.  Sportradar compile data from many sources (including television broadcasts and online monitoring) relating to sports events. They supply this data to customers. The relevant service was called Live Scores. Stan James was one of Sportradar’s customers who linked to Sportradar’s Live Scores service on its website.

Does database right subsist in the Claimants database?

The Defendants argued that database right would only subsist if there is investment made in collecting materials which have already been recorded. They argued that the Claimants’ process of recording factual events at a football match was not collecting existing materials but creating data and therefore not the correct investment. Sir Robin Jacob, who gave the Court of Appeal’s judgment, rejected this argument noting that the measurement of physical phenomena such as temperature and pressure does not create data. He stated

I am entirely confident that a scientist who takes a measurement would be astonished to be told that she was creating data. She would say she is creating a record of pre-existing fact, recording data, not creating IT.

The Court of Appeal held that this was acte Claire and refused to refer the question to the CJEU.

Sir Robin Jacob went on to say

There are huge industries which consist of data collecting and its provision in a database, doing precisely what Mr Silverleaf contends is excluded from protection.  If they are not protected by the sui generic right the investment in them will have no protection. Take the present case. Football Live is the product of considerable investment in collecting the data within it. If it can be copied with impunity would the investment be worthwhile?

Infringement by users

Users accessed data relating to English and Scottish matches by clicking on a link which opened a pop-up window containing match data. When the user clicked on the pop-up window, all of the Live Scores data is downloaded onto the user’s computer but in an encrypted form. However, by clicking on a “magnifying glass icon”  (a de-encryption key) the user can see any part of the data. The Court of Appeal rejected the Defendants’ argument that data is only “extracted” when it is read by the user. The Court of Appeal held that the user’s computer has all the information in it and that this was a “temporary transfer of the contents” of the data into another medium i.e. the user’s computer.

Substantial part

The Court stated that in applying the test of what amounted to a substantial part it was necessary to decide (i) what proportion of the Claimant’s match data directly or indirectly entered Sportradar’s Live Scores service and (ii) what difference the post defence change of just showing the goals and goal times made. 

The Court of Appeal stated that Sportradar had not taken a substantial part of the  Premier League data as it obtained this from TV broadcasts. However, there was a limited number of other sources of data for the Lower Leagues and therefore the Court ought to conclude that this came from the Claimants database.
In relation to the post-defence service, the Court of Appeal disagreed with Floyd J’s  finding at first instance that the post-Defence data could be collected at "virtually no additional cost" and held that the post-defence service also infringed since the Court of Appeal did not see how this data could be collected except by having someone at each ground (and therefore incurring substantial investment). 

Joint tortfeasorship

The The Court of Appeal overturned Floyd J’s decision at first instance that Sportradar was not a joint infringer and found that both Defendants were jointly liable. As a result of the intervening CJEU decision on Sportadar’s primary liability, Sportradar had accepted that it was targeting some UK users. As a result, the Court of Appeal held that Sportradar was also jointly liable with UK users its customers’ websites. The Court of Appeal also upheld the first instance Judge’s decision in respect of Stan James’ joint liability.

Appeal to the Supreme Court

Due to the implications of this decision, particularly its broad interpretation of database rights, Sportradar and Stan James have sought leave to appeal to the Supreme Court, requesting, among other things, that it refers a question on the interpretation of the database directive to the CJEU.

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Peter Brownlow                            Abby Minns
Partner                                         Associate