The High Court has held that databases can be protected from the extraction or re-use of information (that is, sui generis database rights can subsist) where factual data are collated which are available to all. The decision will be welcome to database owners who have seen their rights apparently diminished in a recent run of European Court of Justice cases.
The High Court has held that databases can be protected from the extraction or re-use of information (that is, sui generis database rights can subsist) where factual data are collated which are available to all (Football Dataco v Sportradar, and Football Dataco v Stan James  EWHC 1185 (Ch)) (Sportradar).
The decision will be welcome to database owners who have seen their rights apparently diminished in a recent run of European Court of Justice (ECJ) cases, culminating in Football Dataco v Yahoo (C-604/10), in which the ECJ found no sui generis database rights to subsist in databases composed of data created by, and exclusively available from, the database owner, and also refused to grant database copyright to fixture lists databases (see News brief "Football Dataco: implications for copyright subsistence", www.practicallaw.com/7-518-6424).
Football Dataco (the claimants) employed agents to attend football matches and record a multiplicity of detailed data concerning goals, goal scorers, shots at goal, throw-ins, tackles, offsides, crosses, substitutions, possession, dominant players, free kicks, penalties, bookings and other facts and events. These data were stored in the claimants' "Football Live" database (the database).
Sportradar GMBH and Sportradar AG (jointly, Sportradar) took information from the database, stored the information on servers in Austria, and sold it to betting websites (the betting websites) via their "Live Scores" service. The betting websites (which included Stan James plc) provided links via which their customers (the punters) could download that information.
The claimants alleged that, in downloading the information from the betting websites, the punters had infringed the claimants' sui generis database rights under the Database Directive (96/9/EC) (the Directive), and that the betting websites and Sportradar were joint tortfeasors with the punters.
The primary liability of the betting websites and Sportradar was to be dealt with in separate proceedings, pending a referral to the ECJ by the Court of Appeal on questions of jurisdiction (www.practicallaw.com/1-505-7397).
The High Court considered the following issues:
Subsistence of sui generis right.The court found that the claimants' collation of readily available data for the database was investment in "obtaining" under the Directive, and so the resultant database qualified for sui generis database right (see box "Sui generis database right").
This contrasts with data content that has been "created" by the database owner, as fixture lists were held to be in previous judgments concerning database rights in football fixtures. Also, in the British Horseracing Board (BHB) decisions, it was held that the data on the BHB database of "runners and riders" was created using pre-existing information (names of horses, owners, jockeys) but what resulted was the creation of new information, so the database was not protectable by sui generis rights as the investment had been in creation, rather than in "obtaining, verification or presentation" (for background, see feature article "Database right: a narrower scope of protection", www.practicallaw.com/6-201-2791).
Conversely, in BSkyB v Digital Satellite Warranty Cover Ltd, Sky was held not to have created new information when it entered a customer's details into its database: the database simply recorded pre-existing information in a systematic way ( EWHC 2662 (Ch)). This was therefore a protectable database in which sui generis rights subsisted.
The court in Sportradar found that, although not precisely expressed by the ECJ in these terms, the distinction between created data and obtained data is that, in most cases, created data is not available to others until it is created. To qualify for database right, a database must contain material that is publicly accessible; a database populated with data created by the database owner would not fulfil this criterion and would create a monopoly in the content. To allow such monopolies on data would be inconsistent with the objectives of the Directive, which are to encourage investment in obtaining, verification and presentation of data.
Following Sportradar, the key determining factors for subsistence of database rights are whether the collector of data has control over the creation of the data, and whether there is an alternative source of the data. Here, there was nothing to prevent the public from obtaining the publicly accessible data themselves. As a result, the owner of the database did not create a "stranglehold" on the data and should be rewarded, via sui generis database rights, for its investment in obtaining, verifying and presenting the data in a way that is more easily and conveniently accessible to users.
Infringement by extraction of substantial and insubstantial parts. The Live Scores database was accessed by punters via a link on the betting websites. When a punter accessed information originating from the database through the betting websites, only data relating to a single match would be visible to a punter. However, much more data from the database would be downloaded to the punter's computer, invisible to the punter. The defendants submitted that only the visible data should be considered when addressing the question of whether a substantial part had been extracted under Article 7(1) of the Directive (see box "Sui generis database right").
The court rejected this submission: all the information downloaded to a punter's computer was to be considered, and as the data in fact amounted to a substantial part of the database, the punters had infringed the claimants' sui generis database right.
The data accessed for non-televised matches initially involved goals, own goals, goal scorers, times of goals, cards, penalties, expulsions and substitutions. This was sufficient to equate to a substantial part and thus be infringing use by the punters. Data flow for televised matches was minimal, and limited to goal details only, so was not a substantial part.
Following initiation of proceedings, Sportradar reduced its information provision for non-televised matches to cover simply goal information. The information now being downloaded by punters was "insubstantial" and since there was no evidence of repeated and systematic extraction by punters (usage was ad hoc), nor was there evidence that any individual user was accumulating data entries so as to reconstitute a substantial part of the original database, there was no infringement.
Joint tortfeasors. The Stan James plc betting website (although based in Gibraltar) was held to be a joint tortfeasor with the English punters (in relation to their infringing acts) as it had provided links on its website and therefore directly encouraged customers to use the "Live Scores" service. As it was intimately involved in the commission of the punters' infringement, it was liable for that infringement by common design. However, the involvement of Sportradar, which made data available in Austria, was held to be too remote from the extraction occurring when the punters accessed their site in England to trigger joint liability.
Database owners will be relieved to see that a database has been found to qualify for some enforceable rights. The failure of courts to find the subsistence of sui generis database rights and database copyright in fixture lists in recent years had put a dampener on owners' ability to license access to their databases, where these consisted of data created directly by the owner.
Although many databases consist of material not generated or "created" by the database creator, those database owners that create both content and database, or at least "create" content in the eyes of the ECJ, have been at risk of challenge to any rights that they may have tried to assert in such databases, either from the point of view of licensing the use of the database, or defending the use of its content by unauthorised third parties.
However, the assessment in Sportradar is fact specific, as will be all assessments of subsistence of sui generis database right in future disputes. Nevertheless, following Sportradar, the essential element that needs to be present to allow sui generis protection of a database appears to be the availability of the content of the database otherwise than via the database; in other words:
If data are available through other avenues and the database is just making access and identification of those data easier, then sui generis rights will apply.
If the database is attempting to create a monopoly in that data or restrict access to them (in any absolute sense), then the law will not look so kindly on it and will not allow database rights to subsist in it.
The distinction must be drawn between activities that are creative and those that are obtaining, verifying and presenting. The principle of the avoidance of the creation of a monopoly on facts is one that should now guide all database compilers when considering whether their efforts will be likely to be rewarded by sui generis database right protection.
Rachel Montagnon is a professional support consultant, and Mark Shillito is a partner, at Herbert Smith LLP.
Under the Database Directive (96/9/EC), a sui generis right subsists in a database if there has been substantial investment in the obtaining, verification or presentation of the contents of the database.
The right is infringed if an unauthorised party extracts the whole or a substantial part of the contents of the database in which that right subsists, or where insubstantial parts are repeatedly extracted (Article 7(1)).