Database rights back on the sport radar

The UK High Court’s decision in the Sportradar case[i] underlines the importance of database rights, often overlooked in recent years.

Database rights in created data received a drubbing by the courts over the past decade: several cases have effectively curtailed the scope for protecting fixtures data where created by sporting bodies[ii]. Collected data such as match data, however, remain protectable, as the High Court’s detailed judgment demonstrates.

The decision examines three points of particular interest:

(a)	the subsistence of sui generis database rights[iii] in factual match data, where the data are first recorded during the match in question;
(b)	infringement through extraction of a qualitatively substantial part of the contents of a database; and
(c)	the potential limits of joint tortfeasorship in relation to international sharing of data between multiple parties.

   
The players

DataCo is an English company owned by the Football Association Premier League and England’s Football League.  It markets data from football matches organised by its owners and by the Scottish Premier League and Scottish Football League.  DataCo creates and maintains a database of football match data, with the help of its sub-contractor PA Sport.  Agents attend football matches and record various data relating to match events.  The data are then put into the database via a specially designed graphic user interface called Football Live.  DataCo, the companies that operate the English and Scottish football leagues and PA Sport UK were the claimants in this case.

The first defendants were the German company Sportradar GmbH and the Swiss company Sportradar AG (together, Sportradar).  Sportradar provided data relating to sports events to betting companies and others through its own service.  The Sportradar database is hosted on servers based in Austria, from which it is accessible worldwide.

The second defendants included the British company Stan James (Abingdon) Limited and the Gibraltarian company Stan James PLC (together, Stan James).  Stan James received data via the Sportradar service.  The data were then made available on Stan James’ website via download links accessed by Stan James’ end-users (who are referred to in the judgment, and below, as “punters”).

The match

The claimants alleged that Sportradar’s service made use of data extracted from DataCo’s database, and that Sportradar was jointly liable for the punters’ infringement.  DataCo cannot yet sue Sportradar directly for primary infringement, as the ECJ is yet to rule on whether it can make such a claim in the UK, given that Sportradar’s servers are located outside the jurisdiction, although Advocate General Cruz Villalón has suggested to the ECJ, in his opinion of 21 June 2012, that SportRadar’s uploading of data onto servers in Austria is an act of reutilisation justiciable in England in so far as it forms part of a sequence of events through which the data is made available to UK punters.

The claimants brought related proceedings against Stan James on the basis that:

(a)	the actions of the UK based punters who downloaded the data from the Stan james website amounted to infringment of DataCo’s sui generis database rights; and
(b)	in making the links available on its website, Stan James was liable as a joint tortfeasor in relation to that infringement by punters.

The result

Mr Justice Floyd considered three main points of contention.

1      Creation v. obtaining – factual match data

The question for the court was whether observing events that take place during a match, recording them and inputting the details into the DataCo database via Football Live amounted to creating or obtaining data.   For sui generis database rights to arise under the Database Directive[iv],  there must be a substantial investment in obtaining, verifying or presenting the contents of the database.  Previous case law (most notably in relation to the British Horseracing Board’s database of scheduled races, horses and riders) has established that, where the investment is not in such obtaining, verifying or presenting but is, rather, in creating the contents of the database, the database does not qualify for database-right protection.

The defendants submitted that the data collected at the matches were not pre-existing data, but created during the course of the matches.  In their view of the Directive, for data to have been obtained, the data must have consisted of materials that existed before, and independently of, the database.  They argued that the match data did not exist in any material form before the activities of the agents: the data only came into existence when recorded, and so were in fact created by DataCo and should not qualify for database-right protection.

The judge agreed that there were no pre-existing materials as such, but disagreed with the defendants’ interpretation of the Directive.  While materials did not exist before the agents recorded the data, there were pre-existing facts, namely the events taking place on the pitch.  The facts came into existence when the events occurred, not when subsequently recorded.  Such collection and recording of pre-existing facts could not, therefore, be seen as the creation of new information.

The judge also emphasised the fact that DataCo did not have control over the data.  A sports organisation creating a fixtures list has control over the contents of the list.  A match organiser, however, does not control events that take place at a live football match: the organiser merely provides the environment in which those events can take place.

For these reasons, DataCo’s investment in the observing and recording of match data had to be viewed as an investment in obtaining, rather than in creation.  This investment was substantial and was separate from the investment in the organisation of the relevant football leagues.  The investment did, therefore, give rise to sui generis database rights.

2      Quality v. quantity – extracting data

The next question was whether the sui generis database rights, now established to have subsisted, had actually been infringed by punters.  Without permission, the extraction of a substantial part of the contents of a database amounts to infringement.  Substantiality can be assessed not just in terms of quantity, but also quality. 

On the facts, a certain amount of data was transferred to a punter’s device when the punter clicked on the link on the Stan James website to access data from the Sportradar service.  It was clear that at least some of the data had originated from the DataCo database.  The court had to decide whether that data amounted to a substantial part of the DataCo database.

A distinction was drawn between televised and non-televised matches.  In relation to televised matches, the court found that punters had not infringed DataCo’s database rights since, on the evidence, the flow of data from the DataCo database to punters was minimal.  For televised matches, much of the data available through the Sportradar service had in fact been obtained by Sportradar from personnel watching the televised matches, rather than by extracting the data from DataCo’s database.

For non-televised matches, however, a further distinction had to be drawn between Sportradar’s activities before service of its defence and afterwards.  Originally, Sportradar’s service provided a wide set of match data, including details of goals, goal-scorers, penalties, cautions/expulsions and substitutions.  Since submitting its defence, however, Sportradar had limited the scope of the data, focussing only on goals scored and the time at which they were scored.
 
Much of the information in the broader set of data before service of the defence was hard to obtain, and was only available from limited sources other than Football Live.  The case of BHB v William Hill[v]  had established that the level of investment involved in obtaining a set of data could determine whether it was qualitatively substantial.  In qualitative terms, therefore, this broader set of match data for non-televised matches – being limited in supply and only obtainable through significant investment – was substantial. 

By contrast, the goals-only information available in the post-defence service did not in itself require substantial investment to obtain.  Modern technology made it far less expensive for DataCo to obtain information on the scoring and timing of each goal.  Such information, therefore, was not a qualitatively substantial part of the database, so its extraction by punters did not amount to infringement.

3      Enabler v. encourager – joint tortfeasors

DataCo claimed that both Sportradar and Stan James were jointly liable for the acts of infringement committed by punters.  The court reached different conclusions in relation to each, applying a test for joint tortfeasance established by Arnold J in L’Oreal v eBay[vi]  and summarised by Peter Gibson LJ in Sabaf v Meneghetti[vii] : the joint tortfeasor must have been “so involved in the commission of the tort as to make himself liable for the tort” or, in other words, must have “made the infringing act his own”.

Sportradar, whose servers were based in Austria, had made available abroad a means whereby rights might be infringed.  This was not, it was held, a close enough connection with the punters’ infringement to establish joint tortfeasance.
  
The court found that Stan James, by contrast, did have a close connection with the punters’ infringement: they actively encouraged it by providing the link to the Sportradar service.  Floyd J drew a distinction with mere intermediaries (giving eBay as an example) that provide a service that third parties may use to infringe.  Unlike these, Stan James had a common design with its customers and deliberately offered the service as an incentive, in order to enhance and promote its platform.  It was, therefore, a joint tortfeasor.

Post-match analysis

The result is a boost for DataCo.  With its primary infringement claim against Sportradar still pending the ECJ’s decision on jurisdiction, it already has an established cause of action in relation to the wider set of match data (i.e. beyond mere goals and timings).  This will underpin its commercial licensing activities for customers interested in rich data.

The result will be welcome for other database owners, and assists anyone seeking clarity on the scope of the protection offered by the Directive.  It illustrates clearly that one key factor in determining whether a database can be protected by sui generis database rights is whether the collector of the data has control over the creation of the data.  If the maker of the database has effectively created the data itself, the database will not be protected by sui generis database rights.  If, however, the database is developed by collecting and organising publicly available information that others may have had equal opportunity to access, the investment made in developing the database may be seen as investment in “obtaining”, and – depending on the level of investment – sufficient to qualify for protection by sui generis database rights. 

This approach reflects the underlying purpose of sui generis database rights, which is not to give the maker of the database a monopoly right over the underlying information but, rather, to encourage investment in databases of existing information by ensuring that the results of that investment will be protected.  Such existing information can include pre-existing facts, as the judgment usefully clarifies, and in this respect the judge suggested that Sportradar’s arguments placed too much weight on the use of the word “materials” in the Directive.  And the greater the investment in collecting particular facts (including the wealth of technical match data that sophisticated systems and technology now allow to be captured), the stronger the claim if those factual data are extracted and/or re-utilised.

Perhaps the most difficult aspect of the judgment is its approach to joint tortfeasance.  It is, on the face of it, counter-intuitive that Sportradar’s provision of data to Stan James was not an encouragement of infringement, but that Stan James’s provision of data to their customers was.  The judge saw a distinction in (a) the foreign location of Sportradar’s servers and (b) the fact that “something more” than “mere making available” would be required to make the act of extraction in another country “their own”[viii].   The judgment only deals briefly with this issue, and does not appear to establish clear principles that could be applied in other cases.

It is also hard to reconcile that ruling with the Advocate General’s recent opinion on the issue of primary infringement in this case.  Advocate General Cruz Villalón has suggested to the ECJ that, in cases of this sort, a database owner should be able to take direct, individual action against a data provider, even if the data are made available from servers located outside the member state in which the end-users access the data.  If the ECJ follows this opinion, database owners would be able to sue overseas uploaders as primary tortfeasors in the UK courts, without needing to rely on the more difficult claim of joint tortfeasance.

Nick Eziefula

Associate, Michael Simkins LLP

[i]  Football DataCo Ltd v Sportradar GmbH; Football DataCo Ltd v Stan James Abingdon Ltd [2012] EWHC 1185.
[ii]  Following Case C203/02, British Horseracing Board Ltd v William Hill Organisation [2004] ECR I-10415.
[iii]  I.e. the sui generis database right under the Copyright and Rights in Databases Regulations 1997, which implement the Database Directive (Directive 96/9/EC).  
[iv] Directive 96/9/EC, Art. 7(1).
[v] Citation as above.
[vi] L’Oreal SA v eBay International AG [2009] RPC 21.
[vii] Sabaf SPA v Meneghetti SPA [2002] EWCA Civ 976.
[viii] Para. 81 of the judgment.