This article was originally written for and featured in Fresh Business Thinking.
In the recent judgment of Football Dataco v Stan James and Sportradar and others, the Court of Appeal ruled that an online betting company and its customers together with a German football data provider were all jointly liable for infringing the database rights of Football Dataco. In doing so, it held that, where (a) a website contains material which will inevitably be copied onto the computers of the users of the website, and (b) the material is an infringement of another’s database rights or copyright, both the website user and the website operator will be jointly liable. This will be regardless of the fact that the website operator may not be aware that the material is being copied onto the user’s computer.
Qualifying for database right protection
Football Dataco invested £600,000 per annum in collating live data on football matches. The data included score lines, goals, penalties, substitutions and the like. Football analysts, many being ex-professional footballers, were employed to provide live commentary of football matches. The information from the commentary was then inputted into a large database called Football Live. As a result of the substantial investment made in obtaining the contents of the database, Football Live enjoyed protection under the Copyright and Rights in Databases Regulations 1997. This is separate from copyright protection, which can also apply to databases.
Database rights exist where a substantial investment has been made in (1) obtaining, (2) verifying, or (3) presenting the contents of a database. However, it is well established that investment in creating data is not protected. The defendants attempted to argue that the act of recording a fact, such as a goal, is to be regarded as an act of creation. They stated that data only comes into existence if and when someone measures and records something. This argument was dismissed as being absurd – indeed, the temperature of the room would be same temperature regardless of whether or not it was recorded on a thermometer. The argument was illogical and did not fulfil the purpose of the legislation, which was to protect databases which cost a lot of investment. Football Live contained data which was both objective (for example, a goal) and subjective (for example, man of the match). Although subjective data was effectively the creation of new data, this did not prevent the objective data from being protected
The infringing activities
Sportradar
Sportradar is a German competitor of Football Dataco, which offered a similar product called Live Scores. Operators were employed to enter live data on football matches whilst the match was taking place. The operators mainly obtained the data by watching the matches live on TV or on the internet. However, for lower league matches which were not televised, the operators obtained the data by any method that they could. For these non-televised matches, Sportradar was unable to show that it had used sources other than Football Dataco’s Football Live to obtain the information – there were almost no other sources of obtaining the information available and its indiscretions were first brought to light when their data contained an error which had been deliberately planted by Football Dataco to catch any infringers.
The defendants did not contest that some of the information had come from Football Live. Rather, they argued that a substantial amount had not been copied. Infringement of database rights requires the unauthorised extraction or re-utilsation of the whole or a substantial part of the database. Thus, copying of an insubstantial amount will not constitute infringement.
Initially, Sportradar’s Live Scores contained a wide range of data, for which a substantial part of Football Live’s data was clearly being extracted. However, Sportradar later reduced the data being collated. The High Court found that this later, more limited data did not qualify as a substantial part. This was, however, reversed by the Court of Appeal. Football Dataco had invested in having people present at the football matches to provide the data and therefore it was a substantial part of the database. It was irrelevant that it may be possible to collate the more limited information at a low cost – what was important was the actual cost which had been incurred in doing so.
Stan James and its online customers
Stan James had a commercial arrangement with Sportradar regarding the use of Live Scores. A link to Live Scores was contained on its website. When customers clicked on the link, a pop-up window appeared and all the data from Live Scores was downloaded onto the customers computer in a machine readable form. The pop-up window contained magnifying glass icons for each match that was taking place. On clicking the magnifying glass, the customer would access the data in relation to a specific match in a human readable form.
The defendants put forward the argument that the data was extracted only when data was converted into a readable form and as such, the customer did not extract a substantial amount of the data. This was dismissed. Rather, the point at which the data was extracted was the point at which it was downloaded to the customer’s computer. Accordingly, the users of Stan James’s website were infringing Football Dataco’s database rights.
Stan James was held to be jointly liable with its customers because the purpose in providing the website was to cause or procure acts which amounted to infringement. This differed from a number of previous cases where the website operator was merely a facilitator because the ultimate decision to infringe lay with the customer. On this occasion, as provider of the website, Stan James was causing every user who accessed the website to infringe Football Dataco’s database rights.
It was irrelevant that Stan James nor the customer knew that the Live Scores data was being downloaded onto the customer’s computer. The Judge was of the opinion that Stan James should have inquired as to Sportradar’s practices.
Any defences?
The defendants argued that Football Dataco was seeking to exert a stranglehold over the dissemination of live football match events and that they had a right to freedom of expression under the Human Rights Act 1998. These arguments were described by the Judge as being hopeless.
He concluded that Football Dataco was clearly not monopolising the data. It would provide the data to someone who was willing to pay for it and there was no suggestion that the fees being asked for were extortionate. Further, anyone prepared to go to the trouble and expense which Football Data went to to collate the data, could do so for themselves.
Conclusion
This case serves as a warning to website owners to tighten their back four to ensure that no infringing content beats the offside trap and is available on their website. A website operator is at risk of being jointly liable with any website users who are infringing copyright or database right laws if they are more than facilitating the infringement. In this case, Stan James caused the infringement as every user who accessed the website instantly downloaded the infringing material to their computer.
Website operators should be cautious about third party content on their website. They should ask providers of the content to warrant that they are the legal owners of the content provider to ensure that they are reimbursed for any costs incurred as a result of infringing third party content.
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