Hands-off my Database: Case Comment on Football Dataco v. SportsRadar
By Abhinav Shrivastava
On October 18, 2012, the European Court of Justice (“Court”), through its opinion in Football Dataco v. Sportradar (Case C-173/11 of the Court of Justice of the European Union), recognised the rights of sporting bodies to control access to and limit the utilisation of their databases comprising of match fixtures and tabulation of live results, as well as the limitations of the exercise of these rights within the European Union.
Football Dataco Limited (“Football Dataco”) is a company that is engaged by the organisers of the English football leagues (including the English Premier League) and Scottish football leagues (including the Scottish Premier League) for the purpose of compiling and licensing databases of fixtures and to tabulate data in relation to on-going matches (such as goal-scorers, red and yellow cards issued and substitutions) in real time (“Database”).
Sportsradar GmbH (“Sportsradar”) is a German company that provides statistics and results of matches, including matches of the English football leagues, through its website, and licenses such data to companies that are engaged in providing betting services aimed at the United Kingdom.
In April 2010, Football Dataco sued Sportsradar, before the English High Court, for the infringement of its rights in the Database through Sportsradar’s unlicensed copying and use of that Database in the course of providing its services. In response, Sportsradar claimed that as the utilisation of the data was through its servers in Germany, the courts of England had no jurisdiction over the issue. As this case raised an issue of jurisdiction, the English court referred it for the adjudication of the European Court of Justice.
Database rights in the European Union
The European Commission, through its Directive on Legal Protection of Databases (96/9/EC, dated March 11, 1996) (“Database Directive”) has created an independent right, exercisable by the maker or compiler of a database, to control access to the data and limit the usage of such database, applicable to the member states of the European Union. A ‘database’ for the purpose of the Database Directive is a collection of independent works, data or materials where each element is (a) arranged in a systematic or methodical way; and (b) individually accessible by electronic (or other) means. The Database Directive does not restrict or limit the data that can form part of the database to avail of the right, and is designed to protect the investment and effort involved in compiling and maintaining the database. This Database Directive has been transposed and adopted by the United Kingdom through the Copyright and Rights in Databases Regulations 1997 (“Database Regulation”). Football Dataco’s claim that Sportradar’s service violated its rights under the Database arises out of the provisions of the Database Regulation.
The Database Directive, and concurrently the Database Regulation, enable the maker of a database to prevent the extraction or re-utilisation of the whole or a substantial part of that database, with substantiality of extraction and usage to be determined either on a qualitative (nature of content reused) or quantitative basis (amount of content reused).
In this case, Football Dataco claimed compensation for the unauthorised re-utilisation of the Database by Sportsradar, through the provision of access to data from the Database through its website. It should be noted that the Database was based out of the United Kingdom, and the database rights claim raised by Football Dataco rested on the provisions of the Regulation. However, Sportsradar had its servers based in Germany, and thus while the data from the Database was available on its website, the utilisation of the same was through the transmission of data from its servers in Germany.
Thus, Football Dataco argued that the claim of infringement of database rights arises in both the member state of the European Union from which the data is sent (Germany) as well as where the data is accessed (United Kingdom). In response, Sportsradar argued that the act of transmission occurs only in the place from which the data is sent, and thus any claim of infringement can be raised in the member state from where the data is transmitted (Germany) alone.
At the outset, the Court noted that the Database Directive defines re-utilisation in broad terms to extend to any unauthorised act pursuant to which either the whole or a part of a database becomes accessible by members of the public. However, the Court noted that the Database Directive is an instrument that aims to harmonise the approach to database protection in the European Union, and thus requires that member states adopt the directive into their national laws. Such requirement of adoption by each member state thus permits some deviation of the basic principle specified by the Database Directive, and thereby, the Court opined that the remit of each national implementing instrument must be restricted to the territory of that member state. Further, the Court reasoned that the remedy for unauthorised re-utlisation under a national implementing instrument (such as the Database Regulation) is actionable against any re-utilisation in that member state (“Recipient State”). However, it added that in case of website operators domiciled in another member state (“Emitting State”) the assumption of jurisdiction in relation to acts of re-utilisation, particularly through the internet, by the national court of the Recipient State must consider the intention of such website operators to provide access to the data to persons in the Recipient State.
The Court held that the mere accessibility of such data transmitted from an Emitting State is not sufficient to attract the national provisions of the Recipient State and that for the assumption of jurisdiction by the Recipient State, the court must determine if the data in question is targeted towards persons in the Recipient State. Thus, the Court noted that Sportsradar provides access to the data to betting companies that are directed towards users in the United Kingdom, and that the data is provided in a language that can be understood by users in the United Kingdom. It considered these facts to be relevant for the determination of whether Sportsradar’s operation targeted users in the United Kingdom.
Finally, the Court stated that the object of the Database Directive is to safeguard the investment and effort involved in establishing and maintaining a database, and its objective would be compromised if a person who infringes the rights of a database maker in a member state is able to avoid responsibility by placing its processes outside the territory of that member state. Thus, it referred the final determination of jurisdiction back to the English courts, and directed them to ascertain if Sportsradar’s service displayed an intention to target users in the United Kingdom, on the basis of its conduct and service provision.
Analysis and Conclusion
In this case, the Court displays an intention to balance the competing necessities of limiting the remit of national legal instruments to the territories of member states and of ensuring that such limitation does enable or encourage infringing conduct. In particular, with respect to content available over the internet, it appears to be cautious of enabling extra-territorial application of national instruments to persons that never sought or intended to provide services in such territories.
Thus, in order to maintain a balance, it adapted the test of intention to determine the applicability of national legislation to content transmitted out of another member state. In effect, the Court sought to limit the extra-territorial application of national database rights legislation to conduct which is directed to its own citizens. Such ruling thereby takes into account the differing standards applied by member states in their implementation of the Database Directive, and is designed to ensure that member states do not over-reach and attempt to apply their standard of implementation to conduct in other member states, in the absence of significant legitimising factors.
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