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CJEU gives guidance on database jurisdiction in Sportradar ruling

Football Dataco, the commercial entity that exploits rights associated with English football matches, has won an important decision in its latest battle in the European courts

But today’s ruling by the Court of Justice of the EU leaves open many questions about the protection of copyright in the EU.

The dispute arose in the UK, where Football Dataco owns a database called Football Live, which includes information such as goals and goalscorers, yellow and red cards, penalties and substitutions. It claims to spend about £600,000 a season collating the data.

Sportradar, a Germany company, provides a similar service called Sport Live Data on its website and provides data to sports betting companies.

In the dispute before the UK courts, Football Dataco claimed that Sportradar infringed its sui generis database rights.

But the case raised a question about jurisdiction, as Sportradar’s data was hosted on a server in Austria. The England & Wales Court of Appeal therefore asked the CJEU to rule whether, if a party sends data from a server in EU member state A (eg Austria) to a user’s computer in member state B (eg, the UK), does that constitute an act of “extraction” or “re-utilisation” in either or both states?

Today, the Court answered that such an does constitute an act of re-utilisation and that the act takes place 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”.

It is for the national court to assess, but the CJEU noted that in this case Sportradar’s data concerned English football matches, was supplied to English betting companies, and was available in the English language.

“Where such evidence is present, the referring court will be entitled to consider that an act of re-utilisation such as those at issue in the main proceedings is located in the territory of the Member State of location of the user to whose computer the data in question is transmitted, at his request, for purposes of storage and display on screen (Member State B),” said the Court.

The opinion will be good news for Football Dataco (which has suffered mixed fortunes in recent cases at the CJEU), and may also be useful for owners of databases and indeed other copyright-protected works.

But early analysis on twitter suggested that its broader impact might be limited.

Adam Rendle of Taylor Wessing pointed out that “intention to target” may not always be so easy to show as in this case, which involved English football matches. He suggested it could be shown by the language, currency and payment method available: “Also domain name, keyword advertising, content of website, international dialing codes, named countries etc...”

Gareth Dickson called the opinion “a timid judgment” that avoids answering the bigger questions about member state A and the Donner ruling: “Court of Appeal asked which of 3 mutually exclusive conclusions applied; the CJEU said "at least" 1 did. Is 17(b)(iii) right? CJEU avoids it.”

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