Football Dataco Ltd and Others v Sportradar Gmbh (a Company Registered in Germany) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,Lord Justice Wilson,Lord Justice Laws |
| Judgment Date | 29 March 2011 |
| Neutral Citation | [2011] EWCA Civ 330 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2010/2849 and 2947 |
| Date | 29 March 2011 |
[2011] EWCA Civ 330
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
INTELLECTUAL PROPERTY
Before: The RT Hon Lord Justice Laws
The RT Hon Lord Justice Jacob
and
The RT Hon Lord Justice Wilson
The Hon Mr Justice Floyd
Case No: A3/2010/2849 and 2947
Mr James Mellor QC and Ms Lindsay Lane (instructed by DLA Piper UK LLP) for the Claimants
Mr Henry Carr QC and Mr Hugo Cuddigan (instructed by Bird & Bird) for the Defendants
Hearing dates: 1 & 2 March 2011
Lord Justice Jacob:
This appeal and cross-appeal is from a judgment of Floyd J of 17th November 2010, [2010] EWHC 2911 (Ch). Floyd J:
i) Rejected the defendants' application for an order declaring that the court had no jurisdiction to entertain the claim against them;
ii) In part allowed and in part refused amendments to the claim.
The parties each appeal the findings adverse to them. Having heard all he argument on point (i) and the claimants' argument on point (ii) we decided to inform the parties of our decision. It was in part to allow and in part to refuse the defendants' jurisdiction appeal. As to the claimants' appeal we decided that the main point should be referred to the Court of Justice of the European Union. These are my reasons for these decisions.
The claimants between them say they own (a) UK copyright and (b) UK database rights in a database called Football Live. Football Live is a compilation of data about football matches in progress. It includes things like goals and when they were scored, the goalscorers, yellow and red cards and who and when they got them, penalties and when they were awarded, and substitutions (who was substituted, when and by whom). The data is said to be collected mainly by ex-professional footballers engaged by the claimants on a freelance basis who attend the relevant matches for this purpose. It is claimed that not only is there substantial investment in the obtaining and/or verification of the data but that the compilation of Football Live involves "considerable skill, effort, discretion and/or intellectual input by experienced personnel to generate, select and/or arrange its contents."
There are two defendants, GmbH (German) and AG (Swiss). AG is the holding company of the Sportradar group of companies and is the parent company of GmbH. GmbH provides live scores, results and other statistics relating to football and other sports, including UK football matches to the public via the internet, although it appears that the betting companies actually contract with AG. The service is called "Sport Live Data." The defendants have a website, betradar.com.
In particular the defendants have customers called bet365 (a UK company) and Stan James (a Gibralterian company) who provide betting services for and aimed at the UK market. If one goes to the website of either of these companies a link is provided to betrader.com. If you click on the "Live Score" option the data appears under a banner across the screen saying bet365 or Stan James as the case may be. Clearly therefore members of the public in the UK form an important target for the defendants.
The claimants say that GmbH and its parent, AG act in concert with each other. They point to the fact that AG is not a mere passive holding company, for it claims copyright in the context of the betradar.com website (and so by necessary implication licences GmbH to use the data on betradar.com), that betradar.com says that "Our Live Scores department is mainly operated from our office in Gera, Germany" and says that office is part of the First Defendant. The claimants intend to supplement this allegation by showing that the actual contracts with bet365 and Stan James are with AG rather than GmbH.
The claimants say that the defendants are getting their data not by the exercise of independent compilation but by taking it from Football Live. They say this can be proved by "telltales"—from time to time an error (or something like it) on Football Live has appeared on Sport Live Data and that this could only have happened by copying. The defendants deny copying: they say they generate the data on betradar.com independently without reference to Football Live. They say the "telltales" are explicable – as for instance coming from a common source such as an incorrect goal attribution by way of an announcement at the ground. Who is right will be an issue at any trial, whether that trial takes place in the courts of England and Wales or Germany. Copying will be a central issue. For obvious reasons it would be undesirable for it to be tried both here and in Germany.
On 23 rd April 2010 the claimants commenced the present proceedings. By way of retaliation and in an admittedly forum shopping exercise, on 14 th July 2010 GmbH alone commenced proceedings against the claimants in the Landgericht, Gera claiming negative declarations that its activities did not infringe any intellectual property rights of the claimants. The defendants contend that the April proceedings do not disclose a "good arguable case" against them and so the Landgericht is the court first seized with the dispute. Moreover they say, the proposed amendments to the claim would add a fresh "cause of action" (within the meaning of Art. 27 of the Brussels Regulation EC 44/2001) and thus would not be allowable (or at least would have to be stayed) pursuant to the provisions of that Article.
Before examining what the April proceedings did allege I should briefly set out the legal basis of the claimed rights. These are provided for by the Database Directive (96/9/EC).
Art. 3 provides for copyright. It says:
Object of protection
1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.
2. The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.
Chapter III provides for what the Directive inelegantly and rather unapproachably calls a "Sui Generis Right." Informally people generally call it the "database right" and I shall use that word for it. Art 7 sets out what it is:
Object of protection
1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/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 of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
The UK has implemented the Directive, amending the Copyright Designs and Patents Act 1988 by the Copyright and Rights in Database Regulations 1997 ( SI 1997/3032). Both sides were agreed that nothing turns on the Act as amended: that it means exactly whatever is meant by the Directive, no more and no less. As is so depressingly common the draftsman has gone to a lot of trouble to re-phrase and re-write what he could and should have simply copied from the Directive. I do not bother with the re-write.
It is to be observed that the Directive does not create a Community wide right. Both copyright and database rights created by implementation of the Directive are national rights even though each right has the same scope in each Member State. Thus, for instance, in this case there is a UK database right and a corresponding German database right. We are concerned only with claims based on alleged infringement of the UK copyright and the UK database right.
I turn first to the copyright claim. The criteria for subsistence of copyright in a database are that "by reason of the selection or arrangement of their contents, it constitutes the author's own intellectual creation". The defendants contend that the data collected by the claimants' agents is not of that sort – it involves no intellectual creation. Therefore, they submit, there is no copyright right at all. Alternatively, they submit, the data alleged to have been copied (namely goals, goalscorers, own goals, penalties, yellow and red cards and substitutions) are matters of pure fact. Such data is merely the contents of the alleged copyright and is precluded from protection by way of copyright by virtue of Art. 3.2.
I accept the latter submission. The Judge was obviously sympathetic to it (and to the attack on copyright subsistence as a whole) for he said:
[49] Paragraph 22 of the particulars of claim alleges that the compilation of Football Live involves "considerable skill, effort and/or intellectual input by experienced personnel to generate, select and/or arrange its contents". There is also an allegation that a substantial part has been used: see paragraph 37. In the light of the law as stated above, those combined allegations must include the allegation that what is taken is a substantial part of the intellectual input of the authors. Those allegations are supported by a statement of truth from each claimant. Mr Cuddigan's argument that the part alleged to have been reproduced by his clients does not amount to...
To continue reading
Request your trial
-
Hearst Holdings Inc. v AVELA Inc.
...as the ones articulated by Chadwick LJ – see in particular paragraphs 37 and 38 of his judgment. 28 In Football Data Co. v. Sportradar [2011] EWCA Civ 330, the Court of Appeal discussed Article 27 in the context of a case about database rights. I was referred to the judgment of Lord Justic......
-
Tech 21 UK Ltd v Logitech Europe S.A.
...Services [2007] 1 WLR 12, Knorr-Bremse Systems v Haldex Brake Products [2008] FSR 30, Football Dataco v Sportradar [2011] FSR 10 and [2011] 1 WLR 3044, Altim Holdings and Investment v Kyrgyz Mobil Tel [2012] 1 WLR 1804 and Joint Stock Co Aeroflot — Russian Airlines v Berezovsky & Ors. ......
-
Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others
...the pending reference to Court of Justice of the European Union made by the Court of Appeal in Football Dataco Ltd v Sportradar Gmbh [2011] EWCA Civ 330, [2011] 1 WLR 3044. I shall return to this point 45 Article 3(1) of the Information Society Directive and section 20 of the 1988 Act hav......
-
Joseph Alfred Wilson v Michael Dodd and Others
...alleged: Re Vandervell's Trusts (No 2) [1974] Ch 269 at 321G-322B, as recently applied in Football Dataco Ltd v Sportradar GmbH [2011] EWCA Civ 330 at §27, where Jacob LJ said "You do not have to spell out precisely the legal basis of the cause of action". 97 Secondly, where amendment to a ......
-
Database Right - Advocate General Publishes Opinion In Football Dataco Case
...examined subsistence of database right in the Football Live database. 6 Football Dataco Ltd and others v Sportradar GmbH and another [2011] EWCA Civ 330. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your s......