Yesterday the Court of Justice of the EU provided guidance about where certain acts of database right infringement occur when the contents of a database are transmitted between different countries. It is important because, typically, the country in which the infringement occurs will have jurisdiction over that infringement. It is also likely to have a wider impact: the Court's reasoning could easily be applied to certain acts of copyright infringement where content is made available over the Internet.
To summarise the facts again, Football Dataco claimed that Sportradar had ‘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 then ‘reutilised’ the information by having made it available to betting companies and punters in the UK through its own Sport Live Data service. The UK Court of Appeal wanted to know whether the act of making the information available to the public occurred in Austria when sent or in the UK when received or both.
The Court focussed on the position in the UK. It concluded that reutilisation did not occur in the UK simply because an Internet user there requests data from Sportradar’s web server and is sent that data for storage and visualisation on their computer screen. The Court stated that there also had to be evidence of an intention on the part of Sportradar to target Internet users in the UK. Here the Court provided a fairly clear steer that there was such evidence for a number of reasons (for example, the web server included data relating to English football matches). It’s now up to the Court of Appeal to apply this guidance.
As mentioned, this guidance is also likely to be relevant to certain acts of copyright infringement in the context of Internet transmissions. A copyright owner has the exclusive right to communicate their copyright protected work to the public. This includes ‘making it available’ via the Internet. Unless there is a convincing reason of policy to apply a different meaning to the concept of making available for copyright infringement, it is difficult to see why the Court’s guidance should not extend to copyright too.