The High Court ruling of Floyd J in Football Dataco Ltd & Ors v Sportradar GmbH & Anor [2010] EWHC 2911 (Ch) was thought to have clarified the postion on jurisidction for online publishers; although Floyd J accepted that the matter was not acte clair, he felt that it was not necessary to make a reference to the ECJ. But the Court of Appeal has taken the view (at [2011] EWCA Civ 330) that the question of whether ’emission theory’ or ‘transmission theory’ applies must be referred to the ECJ. The Court of Appeal raises the following questions to be determined by the ECJ:
47. Where a party uploads data from a database protected by sui generis right under Directive 96/9/EC (“the Database Directive”) onto that party’s webserver located in member state A and in response to requests from a user in another member state B the webserver sends such data to the user’s computer so that the data is stored in the memory of that computer and displayed on its screen
(a) is the act of sending the data an act of “extraction” or “re-utilisation” by that party?
(b) does any act of extraction and/or re-utilisation by that party occur
(i) in A only
(ii) in B only; or
(iii) in both A and B?
