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Out-Law News | 11 May 2012 | 9:11 am | 7 min. read
Mr Justice Floyd said that while the investment put in to recording a collection of 'factual data' about football matches does merit the protection offered by database rights, that protection did not apply to solely the recording of goal information in a database. The judge implied that the ruling could equally apply to "other sporting results".
Intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said the ruling meant that people in the UK could face infringement action if they reproduce from databases whole or substantial parts of multiple factual data about events in games.
Three distinct protections can apply to databases and their contents. The information in a database can be protected by copyright; the database structure itself can be so creative that it is protected by copyright, and the whole database can be protected by the 'sui generis' database right.
This was created by the European Union to encourage the development of database-dependent digital systems and it allows a creator to stop others using a database or the information in it if the investment of time, money and skill in that original database was large enough. Under copyright law alone such protection would not necessarily apply if the database contained merely facts, as only the expression of facts and not the facts themselves can be copyrighted.
Mr Justice Floyd was ruling in a case involving Football Dataco, which commercialises match data on behalf of football authorities in Scotland and England. Football Dataco was trying to assert database rights over match data recorded by the Press Association (PA), who carried out work on its behalf.
Football Dataco claimed that Swiss-based firm Sportradar copied the PA data without holding a licence to do so and that UK betting firm Stan James had also infringed on its database rights by using the information Sportradar provided on its website.
Sportradar and Stan James both argued that the investment PA and Dataco made in the creation of match data was in fact an investment in the creation of "mere facts" and as such did not qualify for protection by database rights. However, the judge said that the investment required to record the collection of factual data stemming from events at matches in databases was meriting of database rights protection.
"I think there is a fundamental difference between runners and riders in a horse race and fixture lists, on the one hand, and goals and other sporting results recorded at a live match on the other," Mr Justice Floyd said in his ruling. In 2004, the European Court of Justice had ruled that the resources used to draw up a list of horses in a race do not constitute investment in the obtaining and verification of the contents of the database in which that list appears. "It is perfectly rational to say that the former [horse race] lists are created by the organisers of the events. But the organisers of a football match do not create the goals: that is the province of the footballers. The organisers do no more than provide the environment in which the goals can be scored. They have no control over whether goals are scored or not."
"In my judgment, 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 conclude that the investment ... is substantial. It is wholly separate from the investment in the organisation of the leagues," he said.
However, Mr Justice Floyd said that the act of recording just the information about goals scored was not the kind of activity requiring the level of investment that would trigger the protection offered by database rights.
"It is entirely plausible that, with modern communications, [Football Dataco, the football bodies and PA] could arrange for each goal scored and its timing to be recorded at a central data centre at virtually no additional cost," he said. "There would be no need for [football analysts] with football experience or [sports information processors]. There would be no need for the one-to-one running commentary which the [football analysts] provide."
"Accordingly, even if every goal included in the data extracted by a punter was derived from the [Football Dataco, the football bodies and PA] database (which is not by any means established), I would hold that the data so extracted would not be sufficient to amount to a substantial part," the judge said.
Under the EU's Database Directive a database is defined as "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means".
Under the Directive database creators that have made "qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" can "prevent extraction and/or re-utilization of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database". The Directive defines 'extraction' as "the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form."
Though the goal-recording service did not merit database protection now, Mr Justice Floyd said that Sportradar's 'Live Scores' service that it provided to Stan James probably used to contain "sufficient data derived from the PA database to amount to a qualitatively substantial part" of that database in relation to non-televised matches.
Sportradar's service used to display more match information than just goal information. It used to provide details of goals, goal scorers, times of goals, cards and substitutions but has since modified its service to include data on goals and times of goals when reporting on non-televised games. The judge had deemed that Sportradar used only "minimal" data recorded by PA when inputting information to its Live Scores service about matches broadcast on television.
However, Mr Justice Floyd said that Sportradar was not jointly liable for any infringement by users of data it provided prior to modifying its service.
Previous English and Welsh case law has established that parties can only be found jointly liable for a wrongful act if they are "so involved in the commission" of that wrongdoing that they are themselves liable for that wrongdoing. However, the parties must have "made the infringing act [their] own" to be said to have committed the wrongful act.
Sportradar was not jointly liable for infringement because it was merely making the data available from its servers in Austria, the judge said.
"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," Mr Justice Floyd said. "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."
Stan James is liable for infringement by users prior to Sportradar amending its service though, the judge said. Mr Justice Floyd rejected claims by the betting company that it was entitled to protection from liability under EU laws because it only provided a link to Sportradar's 'Live Scores' service.
"[Stan James] 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," the judge said. "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," he said.
"I think that these facts are sufficient to render Stan James liable as a joint tortfeasor. The link which [Stan James] 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," the judge said.
Mr Justice Floyd had rejected claims by Football Dataco, the football authorities and PA that users of Sportradar's pre-modified Live Scores service were guilty of infringing on "insubstantial parts" of their data.
Under the Database Directive database creators' rights are also said to have been infringed where there has been "repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database" if those actions "conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted." However, that provision does not extend copyright protection to "mere facts or data".
The judge said that the evidence suggested individual users only access the factual data PA recorded from events at games on an "ad hoc" basis and that there was "no evidence that an individual user is accumulating data entries so as to reconstitute a substantial part of the original database". Because of this, those users were not guilty of infringing on the 'insubstantial parts' rights.
Iain Connor said: "The judge has drawn a distinction between a fact that exists in the sense of an event, such as a goal being scored, and subsequently recorded in a database, and the creation of data, such as when the football leagues set out their fixture lists - i.e when they create those fixture lists."
"He was persuaded that the investment Football Dataco expended in recording the fact that a goal was scored was sufficient for a collection of such facts when presented in a database to be sufficient to give rise to the protection of database rights," he said. "However, it was interesting to see how he determined what was a substantial part of a database for the purposes of infringement, with the result being that users are able to get access to a football result without fear of infringing on anyone's rights, but to go further would land a user in trouble."
The question of whether Sportradar can be rendered liable for "primary infringement of UK database rights" has still to be determined by the Court of Appeal. That Court has asked the European Court of Justice (ECJ) for a ruling on a point of law on whether online publishing takes place where information is hosted or where it is read.
Pinsent Masons launches cyber security platform in response to surge of business cyber breaches