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European Court of Justice upholds enforcement of sports data rights


The European Court of Justice has ruled that the rights-holder of sports data protected by database rights can enforce their rights in the “intended target” country where the sports data is received on the internet regardless of where the server using those rights is located.  The ECJ ruled that a company which repackages the sports data can, therefore, be deemed to be making the data “available to the public” by sending it on to internet betting websites.  The ruling is important for sports data owners as it prevents unauthorised users of sports data from avoiding liability by locating servers in countries where there is little prospect of enforcement.

The ruling from the ECJ is the latest in a series of cases concerning sports data rights.  Football Dataco Ltd manages the creation and exploitation of data arising from matches played in the Scottish Premier League and other football competitions in the United Kingdom.  It compiles data about the football matches as the match is in progress (e.g. goals, goal scorers, yellow cards, red cards, fouls, substitutions, names of the players, crosses, throw-ins).  The sports data is then sold to organisations such as internet betting websites or broadcasters which provide the sports data to the public as the match progresses.

In 2010, Football Dataco brought proceedings in the United Kingdom against Sportradar which it claimed was sending the data compiled by Football Dataco to internet betting companies using servers located outside the United Kingdom.  These internet betting companies then disseminated the sports data on their websites to customers in the United Kingdom.  Football Dataco claimed that this conduct infringed its sui generis database right in the sports data as protected by the Database Directive.

The English Court of Appeal accepted that the sports data was protected by the sui generis database right.  However, it asked the ECJ whether the alleged conduct amounted to an “extraction” or “re-utilisation” of the data prohibited by the Database Directive and, if so, whether the infringement took place in the country where the server was located or the country where the data was viewed by the public.

In its ruling on 18 October, the ECJ re-iterated an earlier judgment that the terms extraction and re-utilisation in the Database Directive do not just imply direct access to the database concerned.  According to the ECJ, the concept of re-utilisation must “be understood broadly as extending to any act not authorised by the maker of the database protected by the sui generis right of distribution to the public of the whole or part of the contents of the database”.  The nature and form of the process used, the ECJ found, are of no relevance in this respect.

Therefore, the ECJ held, the act of sending the protected sports data previously extracted from the content of a protected database to internet companies amounts to a “re-utilisation” of the database.  The ECJ stated “By such a sending, that data is made available to … the public”.

The ECJ then considered the location of where the infringement actually took place.  Football Dataco argued that the infringement took place in the country of reception while Sportradar argued that any infringement took place in the country of emission.  The ECJ however followed the non-binding Opinion of Advocate General Cruz Villalon by taking an alternative approach.

In the Advocate’s General view, the virtual world of the internet could not be equated with traditional forms of broadcasting where signals are emitted and received as concepts of time and space are highly ambiguous in the virtual world.  Instead, he considered that the approach to take was to determine the “intended target” of the information on the internet.

The ECJ agreed with this approach.  It was careful to point out that merely making information available on the internet is not sufficient to conclude that the operator of a website is performing an act of re-utilisation contrary to the sui generis database right as otherwise the content of an internet site would have to comply with the laws of all States where it could be accessed.  Instead, the “localisation of an act of re-utilisation in the territory of the Member State to which the data in question is sent depends on there being evidence from which it may be concluded that the act discloses an intention on the part of its performer to target persons in that territory.”

The ECJ considered that the fact that the sports data derived from matches in the United Kingdom and was made available to websites in the United Kingdom could be used as evidence to show that the act of re-utilisation was intended to attract the interest of the public in the United Kingdom.  As such, a rights-holder is entitled to bring an action in the Member State where the unauthorised data is received by the public provided this is the intended target of the unauthorised user.

In coming to this conclusion, the ECJ rejected the claim that the rights-holder could only bring an action where the server is located because it noted that this would make it far too easy for an unauthorised user of the protected data to circumvent the relevant database rights.

This judgment will be welcomed by sports rights-holders as it strengthens their protection against unauthorised use of sports data protected by the sui generis database right.  In particular, it means that rights-holders can choose to sue for infringement in the Member State where the protected data is received and are not required to establish some form of joint liability in the country in question or to bring their claim in the country where the server is located.

The case will now return to the English Court of Appeal for final adjudication.      

Case Reference: Case C-173/11, Football Dataco and Others v. Sportradar Gmnb and others.  A copy of the judgment is available on the ECJ’s website.

KEANE LEGAL specialises in European sports law.  For more information click on the European sports law webpage.  

 

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