Out-Law News 4 min. read

Web publishers responsible for 'inevitable' database rights infringement of users, says Court of Appeal

Website operators can be held responsible for database rights infringement by their users if that infringement was "inevitable" as a result of actions of the site operators, the Court of Appeal has said.

The Court ruled that betting company Stan James was "responsible" for database rights infringement by its website users when it served those users with a "pop-up" live football information service from an external provider. The 'Live Scores' service was provided by Swiss-based firm Sportradar in breach of rights belonging to football authorities based in England and Scotland, it said.

Football Dataco (FDC), which commercialises match data on behalf of the English and Scottish football authorities, contracted the Press Association to compile match data on its behalf. The data was contained in its 'Football Live' service and was available for others to use under license.

The Court said, though, that Sportradar had extracted a "substantial part" of the data contained in the Football Live service "without paying" and that Stan James had paid Sportradar and not FDC "for the data collected by FDC".

Both Stan James and Sportradar challenged whether the Football Live service was a database and, if it was, whether it should be considered worthy of database rights protection.

The Court ruled that the information provided via the Football Live service was "indisputably a database" and that it "is the product of considerable investment in collecting the data within it". Database rights legislation "intended" for such databases to be protected by the sui generis database right, it said.

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.

The Court said that there had been "considerable investment" into the Football Live service through the resources deployed to collect match data and that this merited giving database rights protection to it.

In the ruling judges Sir Robin Jacob, Lord Justice Lewison and Lord Justice Lloyd said the "pop-up Live Scores" service that appeared on Stan James' website "should be treated just as if it were Stan James' own link". The Court considered that Stan James should be held responsible for users' infringement of FDC's database rights since those users would "inevitably" copy infringing data by accessing the betting operators' website. It said Stan James was not a "mere facilitator" of that infringement.

"The question boils down to this: if A has a website containing infringing material which will inevitably be copied into the computer of B if he enters that website, is A a joint tortfeasor with B?" Sir Robin Jacob said in the ruling. "If the answer is yes, then the owner of any website anywhere in the world will be a joint tortfeasor with a UK user of that website if the inevitable consequence of access to that site by the user is infringement by that user."

"I would hold the answer to be yes," the judge added. "The provider of such a website is causing each and every UK user who accesses his site to infringe. His very purpose in providing the website is to cause or procure acts which will amount in law to infringement by any UK user of it. The case is not one of a mere facilitator ... Here Stan James is in reality responsible for the punter's infringement."

The term 'joint tortfeasor' refers to cases where there has been a single wrongdoing but where there are considered to be more than one wrongdoers.

Stan James could not claim a defence of innocent infringement because it "knew that it was getting Live Scores from Sportradar" and did not query "where Sportradar got its data from and how it was sent to the users", the Court said.

"It was a kind of Nelsonian blindness for there were obvious risks," Sir Robin Jacob said. "I do not know whether it can look to Sportradar to indemnify it. But again it surely could have expressly sought such indemnification in its contract with Sportradar. If it chose not to do so it was at least taking a risk if all was not well with what Sportradar was providing."

Case law in England and Wales 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.

The High Court previously ruled that Sportradar was not jointly liable for infringement because it was merely making the data available from its servers in Austria and that it was outside of its jurisdiction to hold Sportradar liable.

However, in October last year the Court of Justice of the European Union (CJEU) ruled that publisher liability for database infringement extends to countries where the information is meant to be used and not just countries where it is stored. The CJEU said an EU national court will have jurisdiction to rule that a company is guilty of primary infringement of database rights if there is "evidence" that the publisher intended for the information to be viewed in that country.

Sir Robin Jacob said that the CJEU had "made it clear" that Sportradar is "potentially liable as primary infringers" of FDC's database rights. Because Sportradar assisted Stan James in "targeting UK punters" in return for "money", the basis on which Sportradar was previously held not to be jointly liable for infringement was now "gone", Sir Robin Jacob said.

The Court rejected arguments that FDC was abusing its rights and unfairly infringing on the freedom of expression rights of Stan James and Sportradar. Sir Robin Jacob said that FDC is "not monopolising the data" recorded from the football matches because it is "willing to provide access to Football Live to those who pay". He said the licence fees FDC levy are not "extortionate" and added that others were free to "collect the data for themselves if they were willing to go to the expense and trouble" to do so.

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