Case 173/11 Football Dataco Ltd v Sportradar Gmbh concerns was a reference to the CJEU from the English claim brought by Football Dataco and others against sports data supplier Sportradar. The claim related to the use of data collected live during English and Scottish football matches. Sportradar sought to avoid the jurisdiction of the English courts, arguing that the infringing act of ‘re-utilisation’ of the claimants’ database could only take place in the Member States in which its servers were situated. The Database Directive defines ‘re-utilisation’ as ‘any form of making available to the public’, and the key question for the CJEU was whether the relevant data was made available in Austria (the place of ’emission’, where Sportradar’s servers were), in the UK (the place of ‘reception’, where the internet users targeted by the website hosting the data were), or both.
Although this is merely a response to a reference, and thus not conclusive, the Court’s ruling strongly favours Football Dataco’s position. The Court observed as follows:
44 The argument put forward by Sportradar that an act of re-utilisation within the meaning of Article 7 of Directive 96/9 must in all circumstances be regarded as located exclusively in the territory of the Member State in which the web server from which the data in question is sent is situated cannot be accepted.
45 Besides the fact that, as Football Dataco and Others observe, it is sometimes difficult to localise such a server with certainty (see Wintersteiger, paragraph 36), such an interpretation would mean that an operator who, without the consent of the maker of the database protected by the sui generis right under the law of a particular Member State, proceeds to re-utilise online the content of that database, targeting the public in that Member State, would escape the application of that national law solely because his server is located outside the territory of that State. That would have an impact on the effectiveness of the protection under the national law concerned conferred on the database by that law (see, by analogy, L’Oréal and Others, paragraph 62).
46 Moreover, as Football Dataco and Others submit, the objective of protection of databases by the sui generis right pursued by Directive 96/9 would, in general, be compromised if acts of re-utilisation aimed at the public in all or part of the territory of the European Union were outside the scope of that directive and the national legislation transposing it, merely because the server of the website used by the person doing that act was located in a non-member country (see, by analogy, L’Oréal and Others, paragraph 63).
47 In the light of the above considerations, the answer to the question is that Article 7 of Directive 96/9 must be interpreted as meaning that the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of ‘re-utilisation’ of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess.
The Referred Question
The Court of Appeal had referred the following question:
Where a party uploads data from a database protected by the sui generis right under Directive 96/9/EC … onto that party’s web server located in Member State A and in response to requests from a user in another Member State B the web server 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?’
The Formal Ruling
The ECJ ruled as follows:
Article 7 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of ‘re-utilisation’ of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess.
