Football Dataco Ltd and Others v Sportradar GmbH and Others Same v Stan James Plc and Others

JurisdictionEngland & Wales
JudgeSir Robin Jacob,Lord Justice Lewison,Lord Justice Lloyd
Judgment Date06 February 2013
Neutral Citation[2013] EWCA Civ 27
Docket NumberCase Nos: A3/2012/1349, 1352, 1364 and 1366
CourtCourt of Appeal (Civil Division)
Date06 February 2013
Between:
Football Dataco Ltd and Others
Claimants Appellants in appeals 1364 and 1366
and
Stan James plc and Others
Defendants Appellants in appeal 1349
Sportradar Gmbh and Another
Defendants Appellants in appeal 1352

[2013] EWCA Civ 27

Before:

Lord Justice Lloyd

Lord Justice Lewison

and

Sir Robin Jacob

Case Nos: A3/2012/1349, 1352, 1364 and 1366

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

INTELLECTUAL PROPERTY

MR JUSTICE FLOYD

[2012] EWHC 1185 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

James Mellor Q.C. and Lindsay Lane (instructed by DLA Piper UK LLP) for the Claimants

Geoffrey Hobbs Q.C. and Philip Roberts (instructed by Olswang) for Stan James

Michael Silverleaf Q.C. and Hugo Cuddigan (instructed by Bird & Bird) for Sportradar

Hearing dates: 3 and 4 December 2012

Sir Robin Jacob
1

These are four appeals and cross appeals from a judgment of Floyd J of 8 th May 2012, [2012] EWHC 1185 (Ch). The judgment was in two actions, called Sportradar and Stan James respectively.

2

Mr James Mellor QC and Miss Lindsay Lane represented the claimants (whom I will collectively call FDC, nothing turning on the distinction between them), Mr Michael Silverleaf QC and Mr Hugo Cuddigan represented Sportradar (as I collectively call the German/Austrian defendants) and Mr Geoffrey Hobbs QC and Mr Philip Roberts represented the two Stan James defendants (whom I can call collectively Stan James). Other defendants have come out of the case for various reasons.

Who the parties are and what they do

(a) FDC

3

FDC (the details of which company comprised within FDC owns what do not matter) claims to own a sui generis database right pursuant to the provisions of the Database Directive (96/9/EC). Part of the data in FDC's database consists of "live" data about football matches in the English and Scottish leagues, the Carling Cup and other English and Scottish matches. The part of the database containing this live data is called Football Live in these proceedings. A match which is the subject of FDC's system is called an FDC match.

4

The live data is obtained by FDC in the following way. Whenever an FDC match is to be played FDC sends (and pays for) a "football analyst" (FBA) to watch it at the ground. Many of the FBAs are ex-professional footballers. They normally sit in the press box. They have to be there an hour before kick-off and report in by mobile phone to an individual at the central information centre run by FDC. The person they report to is called a Sports Information Processor (SIP). The reason for requiring the early report in is to ensure that the FBA is there: if he does not report in an hour before kick off there is time to put in place a replacement — full coverage is very important to the database. The FBA is provided with two mobile telephones on different networks against the possibility of a breakdown.

5

During the match the FBA maintains constant contact with his SIP. He provides something "in the nature of a running commentary" as the Judge called it. The FBA must tell his SIP about a whole range of events on the field as soon as they occur: goals and their times, scorers, assists, type of shot, misses and their types, cards, fouls and who by, saves, corners, substitutions and so on. There are other matters too — matters clearly of opinion such as man of the match, dominant player for the last 10 minutes, severity of a foul and the like.

6

The process is not all one way. For instance when a goal is scored the SIP is required to confirm with his FBA the details he has been given (e.g. number of goalscorer, team, body part used, position of scorer, and net position).

7

FDC estimated that the operation costs in the order of £600,000 per season. The defendants suggested it was something of an overestimate but the judge held that the "overall investment in the FBA/SIP operation is substantial" — a finding not challenged on appeal. It is hardly a surprising finding — such a large scale operation is bound to cost a lot.

8

FDC exploits Football Live by licensing it to various customers, for instance the BBC.

(b) Sportradar

9

Sportradar has and maintains a very large database of sports statistics called Betradar. Within Betradar is a section is called Live Scores. So far as the FDC matches within Live Scores are concerned the Judge summarised the facts:

[37] In-game data (goals, penalties, goal scorers, yellow card, red cards, substitutions) is entered or approved manually by operators. Operators monitor all matches broadcast live on television channels accessible to them. Every FA Premier League Match is broadcast live on one of these channels. If an operator misses an event on that channel, he or she will use an alternative source.

[38] Where no live broadcast is available, operators seek a reliable, fast live internet stream. These are rarely available.

[39] If no broadcast or reliable, fast, live internet stream is available the most common source is Sky Sports News' live TV broadcast. On Saturday this is called "Soccer Saturday". The claimants point out that Soccer Saturday uses data under licence from PA [the company which administers FDC's rights], although it also includes live reports from grounds.

[40] For Football Live Matches in the Championship, English League One, English League Two and Scottish Premier League and First Division where no live broadcast or internet stream is available, only goals and times are included in Live Scores.

[41] Operators also monitor manually a list of 16 online textual sources. The claimants maintain that at least seven of these sources use data under licence from PA. However amongst these are three websites which offer in game betting and for which the PA data would be too slow. Examples of the information available were produced in evidence. This information is independent of the claimants. Whilst not comprehensive, the information is not limited to Premier League matches, but extends to other leagues as well. It follows that PA are not by any means the only source of the relevant data, and, importantly, are not the first to disseminate it.

[42] Sportradar also use automatic monitoring of sports broadcasts and sports information published online. Lists of the websites monitored in this way are in Schedules 2–9 to the Confidential Annex to the Defence. Information from these automatically monitored sources is only incorporated into Live Scores once it has been assessed manually by an operator. The claimants point out that at least ten of these sources use data licensed from PA.

[43] Prior to the date of the defence the processes differed in that, data for red cards, yellow cards and substitutions would be included for Championship matches and below. Moreover the automatic monitoring of this data allowed automatic incorporation into Live Scores. The claimants say that these sources are licensed by PA.

10

In summary therefore, Sportradar's Live Scores, so far as it consists of live statistics about FDC matches, includes data extracted from Football Live. As regards the Premier League, it does its own monitoring from live TV broadcasts. But for leagues below that (the substantial majority of matches) it uses other sources. For all these matches Live Scores contains less data now (goals and times only — "post defence data") than it did before the defence was filed (goals, scorers, times, cards, and substitutions — "pre-defence data"). How much of the data is taken directly or indirectly from FDC's Football Live and its significance are matters in contest in this appeal.

(c) Stan James

11

Stan James are bookmakers. They conduct their business in part through a website stanjames.com which is admittedly aimed at inter alia UK punters although hosted in Gibraltar. The website has a button "Live Scores." (Stan James removed this button from its website on 20 March 2012, shortly before the trial, but even so I will speak of it in the present tense.) If the punter hits this a pop-box appears. The punter's web-browser communicates with the Live Scores section of Betradar and all the Live Scores data is downloaded into the punter's computer. However it is only in machine readable form. What the punter sees is a list of featured games and a magnifying glass icon against each match. By clicking on the icon the punter sees detailed facts about that match (more before the defence than after, as I have said).

12

Technically what happens when the icon is clicked is that a "key" is applied to the data in the punter's computer so that the data is revealed in human readable form. There is an advantage to doing it this way rather than downloading the data directly from Sportradar's Live Scores: it is quicker and independent of the speed of the link between the punter's computer and Sportradar's.

13

Most punters would probably think that the pop-box is provided by Stan James itself. The url says http://www.livescores.betradar.com/?alias=stanjames but that is hardly enough to tell the punter that he is leaving the Stan James website via a link to Sportradar's. The pop-up is presented as a Stan James product. Thus it is headed with the name Stan James in its characteristic green stripe get-up and lettering. Mr Hobbs described it as having been "skinned" ("cloaked" might be a better word) as Stan James. Under the contract between Stan James and Sportradar, Stan James pays Sportradar €2,050 per month for this aspect of the services it provides (there are others, irrelevant here).

The Judge's Findings

14

Floyd J held that:

(a) A sui generis database right subsists in the database consisting of information gathered "live" by...

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