Targeting gets targeted -- and data gets a bit more protected

Kudos to the CJEU for its accelerated
processing of recent decisions -- and for
finding a way of conveying AGs' Opinions
to the judges that's even quicker than email

Every so often the IPKat senses that not quite everyone shares either his enthusiasm for IP or his perception as to what might just be interesting and important.  Today's ruling of the Court of Justice of the European Union (CJEU) in Case C‑173/11, Football Dataco Ltd, Scottish Premier League Ltd, Scottish Football League and PA Sport UK Ltd v Sportradar GmbH and Sportradar AG, is a case in point.  Back in June the Kat posted a note on the Advocate General's Opinion in that case, which attracted not a single comment -- not even a rude one about attempts of greedy businesses to grab more than they were entitled, nor even a spam post advertising the virtues of replica Rolexes, Florida Real Estate or herbal viagra (sic).  Considering that this case, admittedly indirectly, involved football, supposedly the world's most popular sport, the lack of response was almost sinister.

Anyway, nothing daunted, the Kat brings you the CJEU's ruling today.  The case now returns to the Court of Appeal for England and Wales [where, Merpel says, the odds are 6-4 on Sir Robin Jacob making another surprise guest appearance, he being (in footballing terms) the Paul Scholes of the British judiciary] a little over 18 months after receiving the referred questions from London [this commendable turn of speed wins Europe's least loved court its first ever katpat].

To refresh the memories of those who have either forgotten this case's antecedents or who have confused it with other cases involving one or more of the same parties, the story so far goes as follows. Dataco and the other plaintiffs were responsible for organising football leagues and competitions in England and Scotland. Dataco managed the creation and exploitation of the data and IP rights relating to those competitions said it owned the sui generis right in the ‘Football Live’ database -- a compilation of data about 'live' football matches, ie those in progress (goals and goal-scorers, the names of the players, yellow and red cards, fouls and substitutions). The data was collected mainly by former professional footballers hired as freelances by Dataco and who attended the football matches for that purpose. Dataco maintained that there was considerable investment in obtaining and/or verifying the information collected and the compilation of Football Live required skill, effort, discretion and considerable intellectual input by experienced personnel.

German company Sportradar GmbH provided live results and other English league statistics via its website betradar.com though its ‘Sport Live Data’ service. Betting companies which were customers of Sportradar GmbH allegedly had contracts with a Swiss company, Sportradar AG, the parent company of Sportradar GmbH. Those betting companies included bet365, a UK company, and Stan James, based in Gibraltar, both of which offered betting services aimed at the UK market.; their respective web pages had links to betradar.com. The Live Score option provided access to information that appeared in a banner running across the screen carrying the names of bet365 or Stan James, from which the referring court inferred that the UK public formed an important target for the defendant companies.

Dataco, alleging that the information provided on Sport Live Data was extracted from Football Live, brought an action before the High Court of Justice, England and Wales, seeking damages for infringement of its sui generis right in its Football Live database. Sportradar disputed this, challenged the jurisdiction of the British courts and sought a declaration of non-infringement in Germany.

The High Court said it did have jurisdiction to hear the claim, so far as it sought to establish joint liability on the part of Sportradar and those of its customers which used its website in the United Kingdom -- but that it lacked jurisdiction to hear the claim in so far as it sought to establish primary liability on the part of Sportradar. Both parties appealed to the Court of Appeal, which referred the following questions for a preliminary ruling.

‘Where a party uploads data from a database protected by the sui generis right under Directive 96/9 … onto that 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 its screen:

(a) is the act of sending the data an act of “extraction” or “re-utilisation” by that party?

(b) does any act of extraction and/or re-utilisation by that party occur

(i) in A only, (ii) in B only; or (iii) in both A and B?’"

Today the court put everyone except the  out of their misery by ruling as follows

"Article 7 of Directive 96/9 ... on the legal protection of databases must be interpreted as meaning that the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of ‘re-utilisation’ of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess".

Is this good news or bad? According to Katfriend Adam Rendle (Taylor Wessing LLP):

"The decision is good news for rights holders and provides a sensible solution to the problem that online services can be accessed (and could be infringing) anywhere in the world. The CJEU decided that reutilisation of the contents of a database happens, at least, where the service provider "intends to target" members of the public. It did not answer the question of whether it happens at the source of the service. An English court in this case had decided that the reutilisation happens only at source".

How far beyond the facts of the underlying case will this decision stretch? Adam has no doubt:

"The decision only concerned database right but it is likely that it will apply equally to copyright (i.e. the making available right), given the wording of the respective legislation. The making available right is one of the key rights relied on to prevent online infringements. Showing "intention to target" will be key in the enforcement of the rights in future".