Football Dataco’s copyright and database right claim

Where does the act of "making available" take place?

Last week, the High Court gave an interesting ruling in a copyright and database infringement case. The judge held that the making available to the public of all or a substantial part of the contents of a database by online transmission occurs in the place where the server is situated, rather than in the place where the public is based.

The Claimants (Football Dataco Limited, The Scottish Premier League Limited, The Scottish Football League and PA Sport UK Limited) compile a database known as Football Live which is a live database, comprising statistics from UK football matches, such as goals scored, penalties, yellow and red cards and substitutions.

The First Defendant is a German company which provides a competing service to the claimants called Sport Live Data. The Second Defendant is the Swiss holding company of the First Defendant. Their respective servers storing the relevant data are located in Germany and Austria. However, the Defendants’ data is accessible from the UK. The Defendants also supply their data to third party customers who are based in the UK.

The Claimants claim that in assembling their data, the Defendants are copying data from Football Live and are liable for copyright and database right infringement. The Defendants refute this. The Claimants have also started proceedings in Germany.

The Defendants made an application on the basis that the court had no jurisdiction to entertain the claim. Therefore, for jurisdiction purposes, the Claimants had to demonstrate that there was a good arguable case that each of the Defendants had done an act in the UK which infringes its copyright and database rights. They did this successfully.

The judge found that:

Copyright Infringement

• The Claimants had adequately pleaded a case of the Defendants authorising UK based customers to reproduce parts of the Football Live database in the UK (an act that infringes copyright); and
• The Claimants had shown a good arguable case of joint tortfeasorship (i.e. joint liability for an infringing act carried out by the Defendants’ customers) between the First Defendant and its customers and as between the Defendants themselves.

Database right infringement

• Unlike copyright, there is no corresponding provision of “authorising” in the Database legislation. So the Claimants had to demonstrate that one or other of the Defendants had infringed the Claimants’ database rights or that there was some sort of joint torfeasorship.
• There was no basis on which it could be alleged that either of the Defendants had extracted the data in the UK. It would be the end users in the UK who would carry out any act of extraction in the UK.
• For the purposes of establishing whether the Defendants had re-utilised the contents of the database, the judge found that the making available to the public of all or a substantial part of the contents of a database by online transmission occurs in the place where the server is situated, rather than in the place where the public is or in both locations.
• The Claimants had not made out a good arguable case of primary infringement of database right but had made out a good arguable case of joint liability with the Defendants’ customers.

Comment

Mr Justice Floyd did not make a reference to the European Court of Justice to interpret the relevant statutory provisions. However, we imagine that it won’t be long until the ECJ is asked to rule on the place where the act of making available by online transmission occurs, for the purposes of assessing copyright and/or database infringement. In the meantime, businesses which operate in more than one jurisdiction should be aware that this is a hot issue and that the High Court’s ruling is unlikely to be the last relevant decision.

While we wait for further case law, the Court’s ruling does not mean that businesses with their servers outside the UK can disregard the UK copyright and database right regime. As in this case, businesses which publish material on websites accessible in the UK still face the risks of authorising an infringement in the UK and also of tortfeasorship.

From a publisher’s point of view, there is also the issue of defamation. Defamation law sees the position differently. The tort occurs in the place of publication, which is the place where the defamatory material is accessed.

It will be interesting to see how the Claimants’ copyright claim plays out at trial. The Defendants’ Counsel relied on Infopaq International A/S v Danske Dagblades Forening Case C-5/08 and SAS v World Programming [2010] EWHC 1829, arguing that there would only be infringement where there had been reproduction of a substantial part where what is reproduced represents the expression of the intellectual creation of the author. This was unlikely to include data such as goals, goalscorers, red and yellow cards etc. Floyd J commented that "there may ultimately prove to be force in the argument”.

Visit the Bailii website to read the judgment.

Lawyers Graham Hann, Niri Shanmuganathan, Lorna Caddy