On 18 October 2012, the Court of Justice of the EU (the "ECJ") issued a preliminary ruling applying Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (the "Database Directive") in case C-173/11 Football Dataco v Sportradar (for the Advocate General's Opinion of 22 June 2012, see VBB on Belgian Business Law, Volume 2012, No. 6, p. 6, available at www.vbb.com).The preliminary question referred by the Court of Appeal of England and Wales, Civil Division, sought to learn whether the phrase "extraction and/or re-utilisation" as expressed in Article 7 of the Database Directive also covers online data transfer. In addition, the ECJ was requested to clarify where the infringement of extraction and/or re-utilisation is considered to take place. The latter question is particularly relevant to determine the competent court and applicable laws.
The facts underlying the case before the Court of Appeal of England and Wales pit the UK company Football Dataco Ltd ("Dataco"), the right holder of the Football Live database, against the German company Sportradar Gmbh ("Sportradar"). Sportradar provides an online service with live statistics relating to fixtures in the English league and sells this data to its customers, online betting service providers targeting the UK market.
Sportradar argued before the UK courts that its acts do not constitute an extraction and/or re-utilisation within the meaning of Article 7 of the Database Directive. Moreover, Sportsradar maintained that, even if there were to be re-utilisation, the relevant act is located exclusively in Germany, because the webserver, from which the data in question is sent, is located in Germany. Therefore, according to Sportradar, the UK law implementing the Database Directive does not apply.
In its preliminary ruling, the ECJ espoused a broad application of Article 7 of the Database Directive. First of all, it held that "the concept of re-utilisation and the objective of the sui generis right must [...] be understood broadly, as extending to any act, not authorised by the maker of the database protected by the sui generis right, distribution to the public of the whole or a part of the contents of the database. The nature and form of the process used are of no relevance in this respect". The notion of re-utilisation thus also covers online data transfers.
Second, the ECJ did not accept Sportradar's argument that the act takes place exclusively in Germany because of the server's location. It held that such an interpretation would compromise the objective of protection underlying the Database Directive because infringers would be able easily to avoid the application of the database laws by locating their server outside the territory. The ECJ therefore held that the act of re-utilisation should at least be located in the Member State at which the infringing act is directed. Evidence that the database right infringer has the intention to target persons in a Member State could consist of the fact that the data concerns information relating to that Member State. In addition, the database right holder could demonstrate that the infringer was or must have been aware of the final destination of the data sold to its customers or that an additional language was used matching the target public.
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