Allowing Sportradar’s appeal in part, the Court of  Appeal of  England and Wales has ruled that Dataco’s copyright claim in  relation to a database of football statistics failed because what  was allegedly copied was “mere data”, not the database itself.   Lord Justice Jacob, however, dismissed Sportradar’s appeal on  jurisdiction over database right infringement claims insofar as  they were based on allegations that Sportradar were joint  tortfeasors with its UK customers.  Further and most  significantly, on the question of primary infringement by  Sportradar of Dataco’s database rights, Jacob LJ has decided to  refer the reutilisation issue to the Court of Justice of the  European Union (CJEU).   

BACKGROUND 

Dataco creates and exploits data relating to football matches in  the English and Scottish leagues.  Sportradar provides live  scores, results and other statistics relating to football and other  sports, including UK football matches, to the public  via the  internet.  A number of Sportradar’s customers provide betting  services for and aimed at the UK market.  In Football Dataco  Ltd and others v Sportradar GmbH and another [2010] EWHC  2911 (Ch) Dataco argued that Sportradar copies data from  Dataco.   

Sportradar denied copying and commenced proceedings against  Dataco in Germany, seeking declarations that its activities did  not infringe Dataco’s rights.  Sportradar contended that the  English proceedings did not disclose a “good arguable case”  against the company and so the German court is the court first  seised with the dispute.

DECISION 

Copyright Claim

Jacob LJ accepted Sportradar’s submission that the data alleged  to have been copied (goals, goal scorers, etc.,) were matters of  fact that were precluded from copyright protection  as mere  “contents” of a database.  It followed, therefore, that when the  proceedings started, the English court was not seised of a claim  in copyright to the necessary standard. 

Database Right:  Joint Tortfeasorship 

The issue here was not subsistence of database rights but  whether Dataco’s claim identified properly any cause of action  justiciable in the English courts.    Jacob LJ agreed with Dataco’s submissions, finding  that the  English courts were first seised of the dispute insofar as  Dataco’s claim alleged that Sportradar was joint tortfeasor with  businesses in the United Kingdom over which the court had  jurisdiction.  If Dataco was right about copying, it was arguable  clearly that Sportradar and its customers were acting in concert  to enable access in the United Kingdom to the copied data. 

Database Right:  Primary Infringement

On the question of primary infringement, Jacob LJ decided to  refer to the CJEU questions on the meaning of “reutilisation”  under Article 7.2 of the Database Directive (96/9/EC).   Dataco’s claim of primary infringement by Sportradar turned  on the definition of infringement in the Directive, which  includes transmission.   

Transmission over the internet, in Dataco’s submission,  involves both the acts of hosting the website and also the act of  the user in accessing it.  Sportradar’s case is that acts of  transmission occur only in the place from where the data  emanates.  Jacob LJ decided that “this very important and  difficult question” should be referredto the CJEU.  

COMMENT 

Dataco’s claim that Sportradar is directly liable for breach of  database right is now stayed pending the outcome of the  reference to the CJEU, whilst its claim in joint tortfeasorship,  which is not dependent on the questions asked, is allowed to  proceed.  Given the far reaching consequences of a  decision  that transmission can “occur” where the user accesses the  information, the CJEU’s view is eagerly anticipated.