Court of Appeal backs DataCo in football data case

The English Court of Appeal has upheld Football DataCo’s copyright infringement claims against online sports data company Sportradar and UK betting agent Stan James, in a ruling that could provide greater protection for database owners under the European Database Directive.

Football DataCo owns a database called Football Live that provides match statistics for English and Scottish football league matches in conjunction with league organisers. The data include details of goals scored, penalties awarded and red cards issued, and DataCo claims to invest £600,000 each year compiling it.

In 2011, the company sued German online sports data provider Sportradar – which runs a similar service called Live Scores and provides its data to bookmakers – for copyright infringement.

In its complaint, Football DataCo claimed that Sportradar’s Live Scores data were copied from its Football Live database. DataCo argued its data were protected by the sui generis right of the European Database Directive, which allows database owners who have invested substantially in compiling data to prohibit third parties extracting or re-using it. As a result, DataCo said Sportradar should have been paying compensation.

The complaint was first filed at the High Court of England and Wales but Sportradar argued that the court did not have jurisdiction to rule on the case because Sportradar’s data was stored in servers in Austria and Germany.

This question was referred to the Court of Justice of the EU (CJEU), which ruled in October 2012 that the court did have jurisdiction because the data was in English, covered English and Scottish matches, and because Sportradar’s customers included UK betting agency Stan James.The CJEU said this showed an intent to supply the extracted data in the UK.

In the May 2012 High Court ruling, judge Mr Justice Floyd concluded that Sportradar and Stan James, which used Live Score data on its website, were not jointly liable for infringement because Sportradar had amended its data to provide only details of goals scored (previously, it included cards issued and substitutions), so was not extracting a substantial part of DataCo database. He did rule, however, that before this change, Stan James and UK punters using its website were guilty of infringement.

Both parties appealed against parts of the judgement and the case was referred to the English Court of Appeal. In its ruling on Wednesday, February 6, the court overturned Floyd’s ruling that Sportradar was not jointly liable for infringement.

The court also found that while the Premier League goal data used by Sportradar could have been obtained from TV broadcasts, the data from lower league matches could only have come from a limited number of sources, making it likely it was extracted from DataCo’s Football Live.

In his judgement, Court of Appeal judge Sir Robin Jacob said that Sportradar could not have collected this data itself without substantial investment. Jacob also rejected Sportradar’s argument that recording factual events at a football match was not collecting materials but creating data, and so should not be protected by the sui generis right.

“There are huge industries which consist of data collecting and its provision in a database… if they are not protected by the sui generis right the investment in them will have no protection… If it can be copied with impunity would the investment be worthwhile?”

Simon Levine, a partner at DLA Piper who was acting for the claimants, said in a statement that database owners would welcome the ruling: “As the court said, if this database were not found to be protected, the European sui generis database right would have a very narrow ambit and this cannot be what the authors of the Database Directive intended.”.

David Folker, general manager of Football DataCo, said: "It is very positive to see a UK court protecting businesses that incur significant investment in obtaining and making available data on a large scale. We will take some time to consider this judgment fully and will discuss its implications with the various market sectors that historically use football content."