Ref’s Net penalty decider

This week the recently retired Lord Justice Jacob referred an important question to the ECJ in Football Dataco v Sportradar [2011] EWCA Civ 330. It’s about whether someone who uploads infringing content on the internet is liable in the country where he is – or where the content is viewed – or both.

Football Dataco compile Football Live, a database of UK football statistics updated during matches (goals, goal scorers, yellow and red cards, substitutions). Sportradar provides a competing service, Sport Live Data, with servers in Germany and Austria, accessible in the UK via betting sites. Football Dataco claim that Sportradar are copying data from Football Live, constituting infringement of UK copyright and database right.

Last November, Floyd J, determining whether the English courts had jurisdiction, held in [2010] EWHC 2911 (Ch):

1. There was a good arguable case that Football Dataco’s content was protected by copyright, that Sportradar had copied a part of it and had authorized/was jointly liable for copyright infringements by punters in the UK who had reproduced the data on their computer screens.
2. There was a good arguable case that Sportradar would be jointly liable with punters for database infringement by extraction and with the UK betting site for re-utilization.
3. Sportradar had not itself re-utilized Football Live in the UK. ‘Re-utilization’ is defined as ‘making available’, which Floyd J concluded would be committed where Sportradar’s servers are, not in the UK.

All points were appealed and on Tuesday the Court of Appeal held:

1. Football Live might be protected by copyright but there was no copyright infringement if Sportradar had copied data from it. ‘Its recording may sometimes involve some skill (who scored in a goalmouth scramble) but it is not creative skill.’ It followed that Sportradar could not be authorizing or jointly liable for punters’ copyright infringement.
2. There was a plausible case of Sportradar being jointly liable for database infringements by the UK betting site and punters.
3. The question of whether ‘making available’ occurs where a site is hosted and/or where it is viewed required a reference to the ECJ.

It was only in December that Jacob LJ referred to the ECJ the question: ‘Does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?’ He appears to now know at least part of the answer (creative skill).

The jurisdictional question now being sent to the ECJ concerns the database right not copyright, and the copyright and database ‘making available’ rights are not identical. However a parallel question exists in relation to copyright and it would seem likely that whatever the ECJ decide for the database right would also apply to copyright. The legislative history and case law of copyright’s making available right therefore come into consideration.

Sportradar make the policy argument that if making available on the internet happens everywhere that a site can be seen, then websites have the impossible task of making themselves compliant with all the different national laws in the world. A counter policy argument would be: if liability were only wherever servers are located, then infringement is avoided by using servers in countries with lax or no relevant laws.

While the ECJ nuts this out, the proceedings concerning joint-tortfeasorship will continue. This too could make foreign websites liable under the law of the country where they are viewed, through joint liability with end users’ infringements.

The Web is big and it is sticky.