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Database rights - Infringement
Football Dataco Ltd and other companies v Sportradar GMBH and another company; Football Dataco Ltd and other companies v Stan James Abingdon Ltd and other companies: Chancery Division (Mr Justice Floyd): 8 May 2012
There were two actions before the court, concerning the sui generis database right created by European Parliament and Council Directive (EC) 96/9 (on the legal protection of databases) (the Directive), in relation to database right protection of data generated by organisers of sporting events, namely football matches and their timing. Article 7 of the directive provided for 'a right for the maker of a database which shows that there has been qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilisation of the whole or a substantial part, evaluated qualitatively and/or qualitatively, of the contents of that database'.
In the first action, the defendants were a German and a Swiss company (together, Sportradar). Sportradar provided data relating to sports events to customers such as betting companies. Data was provided via, inter alia, a service called 'Live Scores'. The second action involved two defendant betting companies (together, Stan James). Football Dataco Ltd, the first claimant company in both actions, was owned by organisations administering professional football in England.
Football Dataco employed a company called PA Sport UK (PA) to assist in the creation and marketing of the data in issue. PA maintained, through a company called Bet 365, a database of, inter alia, sporting information (the PA database). Information was entered into that database through a 'front end' interface called Football Live. The instant proceedings were concerned with the claimants' allegation that Sportradar and Stan James were jointly liable with customers of Stan James (the punters) for acts of database right infringement committed by punters. Stan James had a website which included a link identified as 'Live Score'. When the punter clicked on the link, a pop-up window appeared on the screen of his or her computer, from which it was possible to access the Live Scores database (Live Scores).
The claimants submitted that Sportradar had copied data relating to some of the matches from the PA database and included them in Live Scores. The evidence showed that, since the date of its defence, and except in relation to televised matches, Sportradar had only supplied data relating to goals and their timings. Prior to the defence, the data involved had been goals, goalscorers, times of goals, cards and substitutions. It would be necessary, therefore, to make findings in relation to, first, whether a database right existed. Secondly, whether the data extracted by the user both prior to and subsequent to the defence was 'qualitatively' 'a substantial part' of the database in order to constitute infringement. Thirdly, in respect of any infringement, whether Stan James was jointly liable with the punters and whether Sportradar was jointly liable with its customers and those of Bet 365.
The court ruled: (1) Case law of the Court of Justice explained that the substantial investment necessary for subsistence of the right could not be demonstrated by investment in the creation, as opposed to the obtaining, of the contents of the database. Factual data which was collected and recorded as a live event such as a football match about events outside the control of the person doing the collection and recording was not created by that person but was obtained by him (see ,  of the judgment).
On the evidence, database right subsisted in that portion of the PA database which contained data input through the Football Live front end (see  of the judgment). Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairous AE (OPAP): C-444/02  All ER (D) 149 (Nov) considered; Fixtures Marketing Ltd v Svenska Spel AB: C-338/02  All ER (D) 150 (Nov) considered; Fixtures Marketing Ltd v Oy Veikkaus: C-46/02  All ER (D) 151 (Nov) considered; British Horseracing Board Ltd v William Hill Organisation Ltd  All ER (D) 149 (Jul) considered; British Sky Broadcasting Group plc and Digital Satellite Warranty Cover Ltd (in liq)  All ER (D) 227 (Jul) considered.
(2) The principal question was whether the data extracted by the user was qualitatively a substantial part. The data which fell to be considered was that which had been transferred to the punter's computer. In relation to televised matches, the amount of data that had flowed from PA to the punter was minimal. On the evidence, the facts were collected by watching the relevant broadcast, independently of PA. In relation to other matches, the larger collection of data for non-televised matches which was collected before the defence was, on balance, likely to have used sufficient data derived from the PA database to amount to a qualitatively substantial part. The sources other than PA for that data were limited, and it was realistic to regard the investment involved in obtaining a body of data of that nature as substantial.
However, considering the goals and timings which were collected subsequent to the defence, the position was different. The same set-up would not be required to collect even that amount of data. It was entirely plausible that the claimants could arrange for each goal score to be recorded at a central data centre at virtually no cost. Even if every goal included in the data extracted had been derived from the claimants' database, the data so extracted would not be sufficient to amount to a substantial part (see - of the judgment).
Although the punters were, prior to the date of the defence, committing acts of infringement of the claimants' database right, they did not do so thereafter (see  of the judgment).
(3) The underlying concept for joint tortfeasance was that the joint tortfeasor had been so involved in the commission of the tort as to make himself liable for the tort. Unless he had made the infringing act his own, he had not himself committed the tort (see  of the judgment). In the instant case, the mere making available, abroad, of the means where a right might be infringed would be insufficient to make the supplier a jointfeasor. Something more would be required. It was not realistic to claim that, by making data available in Austria, Sportradar had made the act of extraction in England their own. However, on the evidence, Stan James were not a mere intermediary. They had adopted the acts of extraction which their customers performed and made their own (see ,  of the judgment).
On the evidence, Sportradar were not joint tortfeasors with customers of Stan James or Bet 365 in respect of acts of infringement of the claimants' database right. Stan James were joint tortfeasors with their customers in respect of acts of infringement to the claimants' database rights (see  of the judgment). Sabaf SpA v MFI Furniture Centres Ltd  All ER (D) 160 (Jul) applied; L'Oreal SA v Ebay International AG  All ER (D) 169 (Jun) applied.
Per curiam: I think there is a fundamental difference between runners and riders in a horse race and fixture lists, on one hand, and goals and other sporting results recorded at a live match on the other. It is perfectly rational to say that the former lists are created by the organisers of the events. But the organisers of a football match do not create the goals: that is the province of the footballers. The organisers do no more than provide the environment in which the goals can be scored.
They have no control over whether goals are scored or not. In my judgment, factual data which is collected and recorded at a live event such as a football match about events outside the control of the person doing the collection and recording is not created by that person, but is obtained by him. I say so for a variety of reasons. Firstly, collecting and recording data falls, in my view, squarely within the ordinary meaning of the term 'obtaining', but somewhat uncomfortably within the meaning of 'creating'. Secondly, in determining whether there is creation involved in the investment relied on, it seems to me that the focus of the enquiry is whether the investment involves creation of new information... Recording existing facts is not creating new information.
The fact of the goal is created when the ball hits the back of the net. Thirdly, none of the policy objections which applied to the data in Fixtures or BHB cases apply. Subject to arguments about the restrictions placed on observers on the facts of the instant case, in principle others are free to collect and record the observed data for themselves. There is nothing in the way in which the data comes into existence which prevents others from obtaining it without reference to the database.
Fourthly... data includes facts: a fact is as much a fact before as after it is recorded. Finally, I think it would be introducing a gloss on the wording of the legislation to read it as requiring that the materials collected in the database must pre-exist in material form, as opposed to merely pre-exist. The notion of a requirement for material form is one well known to those who draft legislation in this general field, for example in copyright (see - of the judgment).
James Mellor QC and Lindsay Lane (instructed by DLA Piper UK LLP) for the claimants; Henry Carr QC and Hugo Cuddigan (instructed by Bird & Bird LLP) for the Sportradar defendants; Philip Roberts (instructed by Olswang) for Stan James PLC.
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