In a Judgment handed down today the Court of Appeal decided that the online use of live match data from football matches (e.g. goals scored, goal scorers, red cards, and yellow cards) did not infringe copyright. The Court of Appeal did allow an allegation of database right infringement in respect of such use to proceed to trial, although they referred the question of where infringement occurs, when such data is accessed from a website based outside the UK, to the Court of Justice of the European Union.
The appeal was from the decision of Mr. Justice Floyd in the case of Football Dataco Limited, The Scottish Premier League Limited, The Scottish Football League Limited and PA Sport UK Limited v Sportradar GmbH and Sportradar AG.
The Claimants (together FDC) exploited certain data relating to English and Scottish football matches. This data was compiled in a database known as "Football Live". The data included goals scored, goal scorers, penalties, yellow and red cards and substitutions. The data is both updated and provided to third parties while matches are taking place.
The Defendants (together "Sportradar") were (i) a German company which assembled data relating to live English and Scottish football matches from public sources, and (ii) its Swiss parent. This data was called "Sports Live Data". The data was stored on web servers in Germany and Austria but could be accessed via links from elsewhere, including from the United Kingdom.
High Court Decision – 17 November 2010
FDC alleged infringement of UK copyright and database right in Football Live by Sportradar.
Sportradar challenged the jurisdiction of the English High Court on the basis that they were committing no acts of infringement in the UK and were domiciled in Germany and Switzerland. The First Defendant subsequently issued proceedings against FDC in Germany on 14 July 2010 seeking negative declarations that its activities did not infringe any Intellectual Property rights of FDC.
The Judge held at first instance that Sportradar had not done any act of reproduction (in respect of copyright) or extraction (in respect of database rights) in the UK. As regards the acts of re-utilization (in respect of database right) and making available (in respect of copyright) he held these acts committed online took place only where the transmission takes place and not where the transmission is received.
He held however that there was a good arguable case that Sportradar were jointly liable for the acts of infringement of copyright and database right by users in the UK who accessed the data.
Court of Appeal Decision – 29 March 2011
Both sides appealed and Court of Appeal held that Sportradar nor UK users had infringed FDC’s copyright by reproducing or making available their data (i.e. goals scored, red cards, yellow cards, players etc).
….there may be copyright in Football Live. But what is alleged to have been copied is mere data on any reasonable view…
As a consequence the UK copyright claim against Sportradar is no longer before the UK Court, nor is the allegation of authorisation of users.
The Court of Appeal did agree with Mr Justice Floyd that the English Court could hear the allegations that Sportradar were jointly liable with UK users for database right infringement.
However, they decided that the question of where the acts of reutilization and extraction occur when data is placed on a website in Austria which is accessible in the UK, should be referred to the Court of Justice of the European Union.
The wording of the question referred is:
Where a party uploads data from a database protected by sui generis right under Directive 96/9/EU (“the Database Directive”) onto the party’s web server located in member state A and in response to requests from a user in another member state B the web server sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on the screen
(a) is the act of sending the data an act of “extraction” or “re-utilization” by that party?
(b) does any act of extraction and/or re-utilization by that party occur
(i) in A only
(ii) in B only; or
(iii) in both A and B
Partner, Peter Brownlow and assistant, Abby Minns of Bird & Bird were solicitors acting for the Defendants, instructing Henry Carr QC, Hugo Cuddigan and Professor Lionel Bentley of 11 South Square Chambers.
To view the whole judgment please click here.