Where to sue or not to sue? That was the question, in essence, referred to the Court of Justice of the EU by the Court of Appeal in Football Dataco Ltd & Others v Sportradar GmbH & Others. The Advocate General’s Opinion, handed down yesterday, suggests that database owners should have a choice.
Football Dataco claimed that Sportradar had (1) ‘extracted’ information from its Football Live database (a database of information about football matches in progress) by uploading it on to its servers located in Austria and (2) included this information in its own Sport Live Data service, and therefore ‘reutilised’ the information by having made it available to betting companies and punters in the UK.
The UK Court of Appeal wanted to know whether the act of making available this information to the public occurred in Austria when sent or the UK when received or both. If it occurred in Austria the UK court would have to decline jurisdiction. Football Dataco would then have to sue Sportradar in Austria for the claim of having made the information available to the public. Conversely, if it occurred in the UK (or both) Sportradar could be sued in the UK.
In the Advocate General’s opinion, the making available occurred in both Austria and the UK. He was not persuaded simply to opt for one or the other by applying so-called ‘emission’ or ‘reception’ theories sometimes referred to in the context of broadcasting. In his view, in the internet context, the making available involved a series of acts which included the sending of the information from the server in Austria through to the access of it by punters in the UK.
If followed by the Court of Justice, their decision will be a welcome weapon in the arsenal of database owners and would also apply to copyright owners seeking to rely on the equivalent ‘making available right’ in copyright, which covers on-demand Internet transmissions of copyright works. A further update will follow once the Court of Justice has handed down its decision.