On 8 May, the Hon Mr Justice Floyd gave judgment in conjoined cases on breach of the database right and whether betting companies were joint tortfeasors in the case of breach of the right by punters.
In Football Dataco Limited & Othrs v Sportradar GMBH and Sportradar AG and Football Dataco Limited & Ors v Stan James Abingdon & Ors [2012] EWHC 1185 (Ch), Floyd J decided that Sportradar was not jointly liable for database right infringement with UK users who accessed its data. The question of liability as a joint tortfeasor was crucial since it was not realistic to make claims against individual punters (who were held to be in breach, at least at one time). He held (at [81]):
‘The allegation of joint tortfeasance is based on the fact that Sportradar “supply” the relevant data by making it available on their servers in Austria, and accordingly have control over what the punter extracts onto his computer. On the facts which I have held and in relation to the data involved prior to the defence but not subsequently, the punter’s act of extraction will inevitably amount to infringement of the database right. Nevertheless I am not persuaded that Sportradar are thereby joint tortfeasors with the punter. The mere making available, abroad, of the means whereby a right may or will be infringed is not sufficient to make the supplier a jointfeasor. Something more is required. I do not think that it is realistic to say that by making data available in Austria, Sportradar make the act of extraction of data in England their own. I bear in mind that they have agreements with Stan James and Bet 365 for information to be made available, but what those companies do with the permission so granted is a matter for them. The case is no stronger than that of a foreign supplier who supplies infringing goods ex works in Italy: see Meneghetti’.
The position as regards Stan James was different (at [82]-[84]):
‘They provide the link on their website, and therefore to some degree directly encourage their customers to use the Live Scores service, albeit from their base in Gibraltar. They do so because it encourages punters to use their website: it binds them to it. Again, on the facts which I have held, prior to the defence, the act of extraction by the punter will inevitably result in infringement. …
[Counsel for Stan James] submitted that these facts did not establish anything more than facilitation of the infringement. He likened the situation of his clients to that of an intermediary such as eBay whose services are used for the commission of torts but who does not commit them. He drew attention to the distinction drawn in the eCommerce Directive, Directive 2000/31/EC of the European Parliament and of the Council, between a genuine tortfeasor and an intermediary whose services are to be used by a third party to infringe a right.
I think that these facts are sufficient to render Stan James liable as a joint tortfeasor. The link which they provide on their site is directed at their customers and encourages their customers to use the Live Scores service. They are not a mere intermediary, like eBay, whose services are used by a third party to infringe a right. Rather, in pursuance of a common design with their customers, they are offering a facility which is not essential to their service to their customers, but which is being used indirectly to promote and enhance that service. In so doing I consider it is right to say that they adopt the acts of extraction which their customers will perform and make them their own.‘
Floyd J also gives considerable attention to the nature of the database and the issue of whether database right protection should be afforded to the maker of the database, ie whether there has been ‘qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents’. He referred to the decisions of the ECJ in the Fixtures Marketing Limited cases concerning fixtures lists for football matches and noted that the ‘substantial investment’ required by the Directive could not be demonstrated by investment in the ‘creation’ as opposed to the ‘obtaining, verification or presentation of the contents of the database’. He noted that one reason which supports this approach is that data created by an individual or organisation is often not available to others until after it has been created. The fact that there is no alternative source for such data could effectively lead to the creator obtaining a monopoly over the data which is inconsistent with the objectives of the Directive.
The judgment includes interesting comments on the difference between ‘creating’ and ‘obtaining’ (at [60]-[61]):
‘factual data which is collected and recorded at a live event such as a football match about events outside the control of the person doing the collection and recording is not created by that person, but is obtained by him. I say so for a variety of reasons.
Firstly, collecting and recording data falls, in my view, squarely within the ordinary meaning of the term “obtaining”, but somewhat uncomfortably within the meaning of “creating”. Secondly, in determining whether there is creation involved in the investment relied on, it seems to me that the focus of the enquiry is whether the investment involves creation of new information: …. Recording existing facts is not creating new information. … the fact of the goal is created when the ball hits the back of the net. Thirdly, none of the policy objections which applied to the data in Fixtures or BHB cases apply. Subject to arguments about the restrictions placed on observers on the facts of the present case, in principle others are free to collect and record the observed data for themselves. There is nothing in the way in which the data comes into existence which prevents others from obtaining it without reference to the database. Fourthly, as recital [17] makes clear, data includes facts: a fact is as much a fact before as after it is recorded. Finally, I think it would be introducing a gloss on the wording of the legislation to read it as requiring that the materials collected in the database must pre-exist in material form, as opposed to merely pre-exist. The notion of a requirement for material form is one well known to those who draft legislation in this general field, for example in copyright.‘
The case concerned a complex database and Floyd J’s reflections on what constituted extraction of a substantial part are clearly of interest, especially as he makes it clear that a change in practice by the defendants meant that there was a move from extraction of as substantial part (by punters) to extraction which was not ‘substantial’.
