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Internet publishing occurs where it is served from as well as where it is read, EU legal advisor says

Online publishing of information takes place both where the information is served from and where it is read, an advisor to Europe's highest court has said.

Advocate General Yves Bot said the internet was a complex communications network and that the High Court in the UK had been wrong to determine that organisations are responsible for 'making available' internet-hosted material in the country where its host server is based and not in the country where the material is read or used.

Bot said it was "highly questionable" whether laws governing satellite broadcasting were useful in determining jurisdictional questions over internet publishing. The High Court had partially based its finding on an assessment of those laws which divides broadcasts into where they are emitted from or where they are received.

However, Bot said that the nature of internet publishing was not as simple as satellite broadcasting laws and said that a reading of EU laws on databases helped to explain where 're-utilisation' of information actually takes place. Under the EU's Database Directive 're-utilisation' is defined as 'any form of making available to the public' the content of a protected database.

"In the context of the internet, the categories of ‘emission’ and ‘reception’ become highly relative as criteria for determining the ‘location’ of the points between which there is an act of communication," the Advocate General said in his opinion.

"Categories based on concepts, such as time and space, the meaning of which becomes highly ambiguous in the world of virtual reality, are rendered ineffective by the networked configuration of a global communication medium, the content of which is constantly being renewed and which even today remains highly resistant to the discipline of a legislative framework that can be effective and efficient only if it is set up with the support of the international community of States as a whole," he said.

"In so far as, in an internet context, ‘re-utilisation’ is not usually a single act but the sequential succession of a number of acts which, having as their purpose the ‘making available’ of certain data via a networked and multi-polar communication medium, occur in that medium as a result of the actions of individuals located in different territories, the conclusion must be that the ‘place’ of the ‘re-utilisation’ is that of each of the acts needed to produce the result comprising the ‘re-utilisation’, that is to say, the ‘making available’ of the protected data," Bot said.

Bot was providing his assessment of a jurisdictional question about online publishing referred to the European Court of Justice (ECJ) by the UK's Court of Appeal. The opinions of Advocate Generals are not binding on the ECJ but are often followed.

The Court of Appeal is looking to determine whether it has jurisdictional rights to assess whether Swiss-based company Sportradar is guilty of "primary infringement of UK database rights" belonging to Football Dataco. Football Dataco commercialises match data on behalf of football authorities in Scotland and England.

Under the Database 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".

Sportradar has argued that the UK courts are not competent to rule on the issue because it 'sends' football data to the UK from servers based in Austria and that therefore no primary infringement of Football Dataco's rights takes place in the UK.

Sportradar provided UK betting firm Stan James with statistics about Scottish and English football games. The UK High Court has previously said that Sportradar copied some information that the Press Association, acting under licence from Football Dataco, provided about the games for use in its own service. However, it said that the company is not jointly liable for database rights infringement by users of that service because it was merely making the data available from its servers in Austria.

Advocate General Bot said Sportradar's actions contributed to a process where Football Dataco's protected database could be said to have been re-utilised, despite finding that the company's activities in isolation were not a re-utilisation of the rights holders' information.

"The fact that, in circumstances such as those which have given rise to the main proceedings, ‘re-utilisation’ is the result of a series of actions coming together that are attributable to different parties does not mean that each of those actions does not in and of itself warrant classification as an act of ‘re-utilisation’ within the meaning of [the Database Directive] entailing the consequences provided for therein," Bot said. "It is clear that each of those actions is meaningful only as a constituent part of that complex act and, therefore, necessarily shares the classification of the act in question."

"Consequently ... I propose that the [ECJ's] answer to the first question [posed by the Court of Appeal] should be that the act of ‘sending’ specifically performed by Sportradar constitutes a ‘re-utilisation’ within the meaning of [the Database Directive]," he added.

Bot said that a reading of the Directive's definition on 're-utilisation' and an assessment of how the ECJ has previously ruled on matters relating to internet jurisdiction meant that Sportradar could be said to have published Football Dataco's protected football statistics within the UK.

"To my mind, [the] phrase, ‘making available to the public’, has to be the essential conceptual key to giving an answer to the question raised by the UK court," he said. "On that basis, the term ‘re-utilisation’ would include the collection of acts which, in this case, starting with the ‘sending’ of data from Sportradar’s server and ending with the acts performed by the betting companies, culminates in the customers of those companies having access to the data sent."

"I propose that the [ECJ's] answer to the [Court of Appeal's] second question should be that the act of re-utilisation under examination occurred as a result of a sequence of actions in a number of Member States and must be regarded as having taken place in each and every one of them," the advisor said.

"This makes sense in the context of the internal market as it focuses on the operation of the market in which the internet service is made available rather than where the business’s servers are located," said Intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com. 

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.

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