Football Dataco Ltd and Others v Sportradar GmbH and Others Same v Stan James Plc and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Floyd |
| Judgment Date | 08 May 2012 |
| Neutral Citation | [2012] EWHC 1185 (Ch) |
| Docket Number | Case No: HC10 C01377 |
| Date | 08 May 2012 |
| Court | Chancery Division |
[2012] EWHC 1185 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
INTELLECTUAL PROPERTY
Royal Courts of Justice
Rolls Building, London EC4A 1NL
The Hon Mr Justice Floyd
Case No: HC10 C01377
HC09 C00391
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
Hearing dates: 27 th, 28 th and 30 th March 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This case concerns the sui generis database right created by European Parliament and Council Directive 96/9/EC on the Legal Protection of Databases ("the Database Directive"). More particularly it concerns database right alleged to subsist in data relating to events at football matches and their timing.
There are two actions before the court, distinguished by, amongst other things, their defendants. In the first, which I shall call the Sportradar action, the defendants are Sportradar GmbH and Sportradar AG, a German and Swiss company respectively. I will refer to them together as "Sportradar" except where I need to distinguish between them. Sportradar are engaged in providing data relating to sports events to customers, for example betting companies. They do so under their brand name Betradar. The service which they provide which is of relevance in this case is called Live Scores. Although they have customers all over the world, including in the United Kingdom, they conduct their operations abroad. Mr Henry Carr QC and Mr Hugo Cuddigan presented the case for Sportradar.
In the second action, which I shall call the Stan James action, the defendants are the betting companies Stan James (Abingdon) Limited and Stan James PLC, a British and a Gibraltarian company respectively. The claim against Stan James (Abingdon) Limited has been stayed. The third defendant to that action is Enetpulse Limited, but Enetpulse is not concerned with the issues which have been ordered to be determined at this trial, and the claim against it has been stayed as well. When I refer to Stan James, I mean Stan James PLC, the second defendant in the Stan James action. The Stan James action also concerns allegations made in relation to fixture lists, but this action is not concerned with those issues either. Mr Philip Roberts presented the case for Stan James.
The Football Association Premier League Limited ("FAPL") and the Football League Limited ("FL") administer professional football in England, whilst the Scottish Premier League Limited ("SPL") and the Scottish Football League Limited ("SFL") do the same in Scotland. Football Dataco Limited ("FDL"), the first claimant in both actions, is owned in equal shares by FAPL and FL. FDL is concerned with the marketing of data from the matches organised by FAPL, FL, SPL and SFL. PA Sport UK ("PA") is engaged as a sub-contractor by FDL to assist in the creation and marketing of the data in issue. The data in issue is collected in a database maintained by PA. This is a large database which contains much more data than that which relates to football. The data which is entered into the PA database concerned with the matches organised by FAPL, FL, SPL and SFL is entered into the database through a special graphical user interface, or front end, called Football Live. I will refer to FAPL, FL, SPL, SFL, FDC and PA collectively as the claimants. Mr James Mellor QC and Ms Lindsay Lane presented the case for the claimants.
As I have mentioned, Sportradar conduct their monitoring of sports events, including English and Scottish football matches, from locations outside the UK. The database which they create and maintain is uploaded onto servers in Austria, from whence it is accessible everywhere, including in the UK. The question of whether Sportradar can thereby be rendered liable for primary infringement of UK database right (if it subsists) by those acts has been stayed pending a reference to the CJEU by the Court of Appeal.
This trial is concerned with the claimants' allegation that Sportradar and Stan James are jointly liable with customers of Stan James ("punters") for acts of database right infringement committed by punters. Sportradar are also alleged to be jointly liable with customers of another betting company, Bet365, on a similar basis. Each of these companies has a website which includes a link identified as Live Score. When the punter clicks on the link a pop-up window appears on the screen of his or her computer, from which it is possible to access the Live Scores database.
The claimants allege that Sportradar have copied data relating to some of the matches from the PA database (the Dataco matches) and included them in Live Scores. The claimants rely on time stamped data relating to goals, goalscorers, own goals, penalties, cautions/expulsions and substitutions. However Sportradar contend, and the evidence shows that, since the date of the Defence, and except in relation to televised matches, Sportradar have only supplied data relating to goals (and their timings). It will be necessary, therefore, for me to make findings in relation to the pre- and post-defence activities of Sportradar.
Database Right—Law
The Legislation
Database right was created by the Database Directive. It is common ground that it has been duly implemented into our domestic law, and so no one suggested there was any point in looking at anything other than the terms of the Directive itself.
The policy and objectives of the Database Directive are contained in numerous recitals, the more pertinent of which are reproduced in the Appendix to this judgment. For present purposes I set out article 7(1), which provides:
SUI GENERIS RIGHT
Article 7
Object of protection
1. Member States shall provide 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-utilization of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
A database is defined in Article 1(2) of the Database Directive as:
"a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means."
Article 7(2)(a) defines extraction as:
"…the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form;"
In addition to being infringed by the extraction or re-utilisation of the whole or substantial parts, Article 7(5) provides that other acts are not permitted, as follows:
"The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted." (my emphasis)
This is the so called "little and often" provision. The right created by Article 7 applies irrespective of the eligibility of the database in question or its contents for copyright protection (see Article 7(4)), but, as recital 45 makes clear, the right given does not in any way amount to an extension of copyright protection in "mere facts or data".
Subsistence
The Court of Justice has had to rule, on more than one occasion, on the eligibility for database right protection of data generated by organisers of sporting fixtures. The first group of cases, Case C-46/02 Fixtures Marketing Ltd v Oy Veikkaus AB (Finland); Case C-338/02 Fixtures Marketing Ltd v Svenska Spel AB (Sweden); Case C-444/02 Fixtures Marketing Ltd v Organismos Prognostikon Agonon Podosfairou (Greece), was concerned with fixture lists for football matches. 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, verification or presentation of the contents of the database. The Court accordingly rejected the claims to database right on the ground that substantially all the relevant investment in fixture lists was in the creation of the data. In the Finnish case, Case C-46/02, it said this:
"32. Article 7(1) of the directive reserves the protection of the sui generis right to databases which meet a specific criterion, namely to those which show that there has been qualitatively and/or quantitatively a substantial investment in the obtaining, verification or presentation of their contents.
33. Under the 9th, 10th and 12th recitals of the preamble to the directive, its purpose is to promote and protect investment in data 'storage' and 'processing' systems which contribute to the development of an information market against a background of exponential growth in the amount of information...
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