Making available over the internet – Database and Copyright Law – Where is Information made available over the internet? – Football Dataco Ltd (FDC) v Sportradar

Under Australian law there is no separate ‘database law’ as is the case in many other countries.

As mentioned in a previous article relating to the legal protection of databases in  Australia,  databases are characterised as factual compilations, which are  classed as  ‘original literary works‘ under the Copyright Act 1968 (Cth).

As reported by IPKat, the English High Court has ruled on a question of law, involving both the application of copyright law and ‘database law’ as it exists as a separate right in the European Union.

The question the High Court had to decide was  what jurisdiction the making available of data over the internet across jurisdictions occurs, whether under copyright or database law, where data is stored on a server in one country,  and made accessible to consumers in another country’s jurisdiction. Data can travel very quickly over the internet.  Off-track sports betting used to occur in the United States, but traditionally it has taken place mainly at the track.    Internet and real-time internet betting has changed this. There is no consistent body of international law with respect to the legal protection ‘data‘ or ‘information‘ receives.

The law in different jurisdictions over the ownership of ‘information’ even under the umbrella of  copyright law,  seems to have undergone rapid change in recent times, as evidenced by recent copyright decisions dealing with factual compilations.

WHAT IS MAKING DATA AVAILABLE TO THE PUBLIC IN AN ELECTRONIC FORM UNDER COPYRIGHT AND DATABASE LAW?

In the context of copyright the right of ‘making available to the public‘ refers to the making available in electronic form material to the public at a time and place that users can access it according to their time and choosing. (Article 8 – World Copyright Treaty 1996 – WCT). However the EU Directive on Database Rights came into being prior to the adoption of the WCT, and in respect of the re-utilisation right it was believed that this right of communication to the public online or by other forms of transmission was much broader than within the copyright context.

The High Court of England had to answer the question of the rights held by the Claimants under copyright and database law,  involving allegations of copyright infringement and database law violations.

Europe has its own specific database protection laws known as ‘sui generis‘  (one of a kind) protection in addition to copyright law protection, a foreign concept to  Australia law and the law of other Commonwealth countries.

Australia hasn’t had any specific law protecting databases, although databases were, until recently,  effectively protected at law where they satisfied the requirements of Australian copyright law. Prior to recent Federal Court decisions in the Ice TV case, Telstra v Sensis and Fairfax v Reed Corporation,  Australian copyright law recognised that copyright protection could be conferred upon a range of  factual  ‘compilations’ involving collections of word,  figures or symbols in the form of telephone books to tables of statistics and bingo games.

There have been some dramatic changes which have evolved rapidly since the recent case law in Australia, which raised issues such as who owns the news as discrete headlines and other kinds o arrangements. These cases seemed to allude to a copyright law that had unduly extended protection to a sui generis ‘database right’, which protected facts or raw data based on the investment made by the database owner in producing their work.

The old mapmakers’ copyright cases of the 18th and 19th century gave more rights to mapmakers due to the expense and risk associated with surveying expeditions, acquiring data in remote places and the strategic value of maps.   The rendering of the data on the other hand was relatively  cheap.  There seems to be a universal sentiment that perhaps dates back to these cases to the effect that such effort should be rewarded.  The difficulty is however is that it is very hard philosophically to delineate the proper boundaries of protection which is deserved by database owners.

Elements of this thinking seem to have found expression in the US tort of misappropriation, a species of unfair competition first recognised in the International News Case in 1918. The tort which later became known popularly as ‘hot news misappropriation’ is based on a doctrine that one should not reap where one has not sown. It has arisen recently in respect of several cases brought by newspaper publishers against news aggregators in respect to the use of news headlines on the internet.

In the European Union there have certainly been a number of database cases which have arisen over the legal contours of protection of data in the context of  sports scores, statistics and football fixtures. The complexities of interpreting EU database law are compounded when data moves so quickly and effortlessly in a borderless world.

Electronic databases can now be created automatically with advances in modern technology.  There are slight different rights attached to the rights of database owners under the European Union Directive on Database Law and copyright legislation in respect of reproduction, communication and re-distribution of rights under legal regime.

Some of these issues were raised in the recent case of  Football Dataco Limited, The Scottish Premier League Limited, The Scottish Football League Limited and PA Sport UK Limited v Sportradar GmbH and Sportradar AG.  Justice Floyd in the High Court of England, had to decide whether the act of making available online by transmission to the public is committed ONLY at the place where the transmission takes place, as opposed to the place where the servers resided in Germany and Austria.

The Judge held that the making available of the data over the internet by the defendant occurred in the jurisdiction where it’s servers were based rather than where the user is situated and first views the material.

The data was accessed via links accessible to the English public  appearing on several of the Defendants” commercial customers’ websites.

FACTS

The Claimant Football Dataco Company Ltd (FDC) are a business which generates and  commercially exploits data relating to the playing of football matches, compiling the data in a database it calls ‘Football Live’.   ‘Football Live’ contains data on goals scored, penalties, goalscorers and other data of interest to  football fans and punters alike.  The data compiled is maintained, updated and provided to third parties whilst matches are in progress.

The defendants German Company Sportradar and it’s Swiss parent compiled data relating to football league matches from various public sources resident on it’s ‘Sports Live Database‘.  The Database was stored on their servers, but was accessible to consumers in other jurisdictions, competing with the Claimants’ ‘Football Live’ product.

FDC commenced legal action in the High Court alleging copyright  infringement by Sportradar  and violation of their database rights held in the live data contained in ‘Football Live’.   Sportradar denied any claim of copying data from ‘Football Live’.

The claimants asserted the  following rights:

i) Copyright as a database under ss1(1)(a),  3(1)(d) and  3A(2) of the Copyright Designs and Patents Act 1988 UK

ii) Database rights under Reg 13 of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032)

iii) Copyright in a table or compilation other than a database under ss 1(1) (a) and 3 (1) (a) of the Act in (ii)

iv) Copyright in a literary work under  s1(1)(a) and 3(1)(a) of the Act.

In their Particulars of Claim the FDC identified two of the defendants’ commercial customers, being Bet365 Group Ltd, a UK company providing online betting services to UK customers through a website called www. bet365.com.

The other customer named was  Stan James P/L, a Gibraltar registered company providing online betting services to UK customers through StanJames.com.  It was further claimed that these two customers also provided data to service UK customers through another website called www.betradar.com.

The defendant raised a jurisdictional challenge to the High Court hearing the matters,  arguing the English court lacked jurisdiction to hear the case as it hadn’t committed any act of infringement in the UK and both companies were domiciled in Germany and Switzerland respectively.

Sportradar had earlier approached a German Court, to obtain  a negative declaration that its activities didn’t infringe any intellectual property rights of FDC, presumably as a defensive move to head off the forthcoming action against it  in the High Court.

After the declarations were made the Claimants tried  unsuccessfully  to amend their Particulars of Claim in the English court.  The English Court held it couldn’t hear any of the matters in the amended claim to the extent that the German Court had already asserted jurisdiction over them.

The defendants had won the match in the German Court so there was no replaying of the match in England after it had been played and won.

FINDINGS

On the basis of the evidence presented the English High Court held that Sportradar had not committed any act of reproduction in respect of copyright held by FDC or extraction in relation to the data held in their ‘Football Live’ database.

Extraction and re-utilization are  rights belonging to a Database Owner under Art 7(1) of the Database Directive.   To succeed in their action the Claimants had to show that Sportradar had either directly committed the acts of extraction or re-utilisation  or together with third party joint tortfeasors.

Unlike under  copyright law, there is no provision in the Database Directive which prevents authorisation of database rights. Extraction of data from a database  can be direct or indirect (see  British Horseracing Board Ltd. v William Hill Organisation Case C-203/02 [2005] RPC 13) and includes the act of downloading data (see Directmedia Publishing GmbH v Albert-Ludwigs Universität Freiburg Case C-304/07 [2009] RPC 10).

The Claimants alleged the Defendants were jointly and severally liable as joint tortfeasors with end-users for reproducing or authorising the reproduction of data displayed on the various websites after every game.

However the acts of reproduction FDC relied upon to ground their claim were acts committed by end users in the UK who visited the commercial partners’ websites and clicked on the live scores of the websites, causing the act of reproduction to occur on their computer screens.

FDC was in effect saying that the end users had committed acts of primary infringement by reproduction, by arguing that the server sent the data to their computers or alternatively Sportsdata had authorised the reproduction.

In respect of the acts of re-utilisation of database rights the Judge referred to Art 7(2)(b) of the Database Directive which refers to “any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies by renting, by online or other forms of transmission“.

As the end users weren’t named as parties to the original  case as pleaded, the court had to consider the case as an authorisation case.  The Court referred to case law which held that for authorisation liability to occur the act of authorisation doesn’t have to take place in the UK, providing that the infringement does.  However case law says that authorisation is the right to do the act complained of, not the act of merely enabling, encouraging or assisting.

The Court concluded that there was an important question of law regarding where the act of making available arose in relation to the database claim,  a similar issue which the Court had to decide in respect of the issue of making the data available in relation to the allegation of copyright infringement.

As stated above, the Court referred to the broadcasting of material in order to answer the question of where the act of ‘making available‘ occurred, stating that a broadcast occurs at the place of transmission of the broadcast not the place of receipt. (see Directive on Satellite Broadcasting and Cable Re-Transmission for broadcasts originating within the European Union)

Under the Directive a broadcast occurs where the signals are introduced under the control of the person making the broadcast into any uninterrupted chain of communication  (aka ‘the emission theory’)

The Court held that the act of making available to the public by online transmission over the internet is similar to a broadcast and is performed only where the transmission takes place.

The Court acknowledged that whilst the placing of  data on a server in one jurisdiction can have the practical effect of making data available to users in other jurisdictions, this doesn’t mean the party who has made the data available has committed the  act of making available by transmission in the state of reception.

The law on the legal protection of databases is extremely important when you consider the types of databases which exist today, including databases protecting collections of gene sequences, meteorology information, scientific and educational databases.  These databases are often accorded protection as original literary works which use computer programs,  further bolstered by digital rights management and anti-circumvention provisions.  There may even be patent or trademark rights protecting aspects of the databases.  The law of contract and the tort of misappropriation also may apply to databases in Europe.

Every country in Europe has separate copyright laws in addition to database laws which have been modelled on the application of US misappropriation principles.

It is a critical area of law, dealing as it does with the commodification of information having attained the legal status of property and how it would be possible to agree on the protection to be conferred on different types of databases even if it were possible to arrive at some international consensus on database protection.  Information has an inherent value beyond it’s economic value even if an economic case could be made out for it’s protection.  Many useful databases have been created to benefit society as a whole, and often with the use of public monies. There is also something frightening about a database owner having a monopoly right over a database containing ‘facts’ or ‘information’ with other rights which can be used to lock away such information. Nobody would seriously contend that  scientific facts  have a long life cycle deserving of an extensive period of protection.

Professor Mark Davison in his book ‘The Legal Protection of Databases’, exhaustively details the law of copyright and databases in different European countries, contrasting  the laws in other jurisdictions and critically examining the interface between database, copyright law and the US tort of misappropriation which underpinned the EU database law and early US database proposals.   Although I confess  ‘database law’ didn’t seem very enticing before I read it, it was the most rewarding and compelling legal texts I have read.

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