Football Dataco Ltd and Others v Sportradar Gmbh (a Company Registered in Germany) and Another
| Jurisdiction | England & Wales |
| Judge | THE HON MR JUSTICE FLOYD,Mr Justice Floyd |
| Judgment Date | 17 November 2010 |
| Neutral Citation | [2010] EWHC 2911 (Ch) |
| Date | 17 November 2010 |
| Court | Chancery Division |
| Docket Number | Claim No: HC10C01377 |
[2010] EWHC 2911 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
Before: The Hon Mr Justice Floyd
Claim No: HC10C01377
James Mellor QC and Lindsay Lane (instructed by DLA Piper UK LLP) for the Claimants
Hugo Cuddigan (instructed by Bird & Bird LLP) for the Defendants
Hearing dates: 22 nd October 2010
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.
Mr Justice Floyd:
There are two application notices before the court. The first, the jurisdiction application, is an application by the defendants, Sportradar GmbH and Sportradar AG (“GmbH” and “AG” respectively) for an order declaring that the court has no jurisdiction to entertain the claim against them (alternatively that any such jurisdiction should not be exercised) and setting aside service of the claim form accordingly. The second, the amendment application, is an application by the claimants to amend their particulars of claim, as they would put it, to clarify existing alleged acts of infringement and add new ones.
The first claimant is owned by The Football Association Premier League Limited, the Football League Limited and the second and third claimants, all of whom are engaged in the business of organising professional football matches in various leagues and competitions in England and Scotland respectively. The first claimant is engaged in the business of creating and exploiting certain data and rights, including intellectual property rights, relating to the playing of football matches organised by the Leagues. The fourth claimant is engaged by the first claimant as a sub-contractor to assist it in the creation and exploitation of the data and rights referred to above. For the purposes of these applications there is no need to distinguish between the various claimants.
GmbH is a German company. AG is a Swiss company. 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 customers via the internet. They have a website at betradar. com. The extent of involvement of AG in these acts is one of the issues on the jurisdiction application.
The proceedings are for infringement of (a) copyright and (b) database right. The rights are alleged to subsist in a database known as Football Live compiled by the claimants which comprises the statistics from UK football matches. Examples of these statistics are goals scored, goalscorers, penalties, yellow (caution) and red (sending off) cards and substitutions. The data is referred to as “live data” as it is both updated and provided to third parties while matches are taking place.
GmbH provides a competing service to the claimants. This data is called “Sport Live Data”. The data is stored on webservers in Germany and Austria, but can be accessed via links from elsewhere, including from the United Kingdom. The claimants say that, in assembling their data, GmbH and AG are copying data from Football Live, and are therefore liable for infringement of UK copyright and database right. The allegation of copying is denied.
These proceedings were commenced by the claimants by the issue of a claim form on 23 rd April 2010. It is relevant to note that, no doubt prompted by the present claim, further proceedings were issued against the claimants by GmbH on 14 th July 2010 in the Landgericht Gera in Germany seeking, amongst other things, negative declarations that the activities of GmbH do not infringe any intellectual property rights of the claimants. GmbH contend that, for any claim of which the English court was not properly seised before 14 th July 2010, the German Landgericht was the court first seised. It is therefore of importance to examine with some care what, if any, claims were made in the proceedings in the original particulars of claim, over which the English court has jurisdiction. That exercise must be done without the benefit of the amendments which the claimants now wish to make, which were applied for only when the Landgericht was already seised of the declaratory claim, and for which permission is required which has not yet been granted.
The jurisdiction application
Because jurisdiction is governed in the case of GmbH by the Judgments Regulation ( Council Regulation (EC) No 44/2001) and in the case of AG by the Lugano Convention, it is common ground that the claimants must show a “good arguable case” of copyright and/or database right infringement in order to establish jurisdiction in this country. In default, GmbH and AG would have to be sued in their states of domicile, that being the primary rule of jurisdiction under those instruments. Moreover, copyright and database right are strictly territorial rights. No copyright or database right other than UK copyright or database right is asserted in the action. It follows that it is necessary for the claimants to show in both cases that there is a good arguable case of an act in the UK which infringes those rights. GmbH and AG submit that they perform no infringing acts, or indeed any acts at all, in the UK. They submit accordingly that the particulars of claim fail to make out a good arguable case against either of them of an act in the United Kingdom.
Parts of the case advanced on behalf of GmbH and AG are based on arguments that the particulars of claim simply do not make the relevant allegation. Those questions are susceptible of a “yes” or “no” answer. Other parts are based on an examination of the evidence in relation to issues which are properly raised by the pleading. These latter issues have to be decided according to the principles set out by Waller LJ in Canada Trust v Stolzenberg [1998] 1 WLR 547 and subsequently approved on appeal at [2002] 1 AC 1 at 12, and then in the Privy Council in Bols Distilleries v Superior Yacht Services [2007] 1 WLR 12. At the risk of over-compression, those principles are that I must come to a view, within the limits of the interlocutory process, as to which party has the better of the arguments on the available material. That is what is meant by “a good arguable case”.
Sometimes a question of whether the court has jurisdiction turns on a question of law. In Chellaraum v Chellaram (No 2) [2002] 2 All ER 17 Lawrence Collins J, as he then was, indicated the approach to be taken where the court has to decide an issue of law for the purposes of deciding whether to accept jurisdiction, at [136]:
“Where jurisdiction depends on a question of law or construction, the court will decide it rather than apply the good arguable case test: see cases at Dicey and Morris, para 11-127, n. 34 1. That approach has consistently been applied to cases where jurisdiction has depended on the applicable law of a contract for the purposes of what is now CPR 6.20(5)(c). In such cases the court does not consider whether the claimant has
a good arguable case that the contract is governed by English law, but rather whether the contract is governed by English law. Some of the most important cases on the applicable law of a contract at common law were decided under predecessors of this rule (e.g. Amin Rasheed Shipping Corp. v. Kuwait Insurance Co. [1984] AC 50) and I do not consider that anything in the Seaconsar case is intended to throw doubt on their approach. Accordingly in a case such as this, if jurisdiction depends on the identification of the applicable law, the claimant would have to satisfy the court that the applicable law was English law, and the good arguable case test would only have a role to play if there were a relevant factual issue (for example, if an express choice of law were said to be ineffective on the facts of the case).”
In addition to the fundamental point about acts in the jurisdiction, GmbH and AG run a series of further points as to why the court has no jurisdiction. They submit:
i) that the claims to subsistence of copyright and database right are either liable to be struck out or very weak;
ii) the claim for a reproduction of a substantial part of the copyright work cannot be maintained;
iii) the particulars of joint tortfeasorship do not support an arguable case against AG;
iv) the reliance on a customer, Bet 365, accessing the data is misplaced in the light of the terms of a licence between the claimants;
v) GmbH and AG have the better argument on whether there has been copying.
No act in the UK
The particulars of claim, from paragraph 24 onwards, identify the rights relied on. In summary, Football Live is alleged to enjoy the following rights, some of which are said to be cumulative and others alternatives:
i) Copyright as a database pursuant to sections 1(1)(a), 3(1)(d) and 3A(2) of the Copyright Designs and Patents Act 1988 (“the Act”) (paragraph 25);
ii) Database right pursuant to Regulation 13 of the Database Regulation, by which is meant the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) the domestic legislation enacted to give effect to European Parliament and Council Directive 96/9/EC on the Legal Protection of Databases (“the Database Directive”);
iii) Copyright in a table or compilation other than a database pursuant to sections 1(1)(a) and 3(1)(a) of the Act;
iv) Copyright in a literary work pursuant to sections 1(1)(a) and 3(1)(a) of the Act.
Paragraphs 32 to...
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