Football Dataco Ltd & Ors v Sportradar GmbH & Anor

For jurisdiction over territorial intellectual-property claims, the claimant must show a good arguable case of an infringing act in the forum. Where jurisdiction turns on a question of law, the court decides that question rather than applying the good arguable case test.

Authorisation of a UK primary infringement may occur abroad, provided the authorised primary act occurs in the United Kingdom. Authorisation requires more than enabling or encouraging infringement and depends on all relevant circumstances, including control.

For database right, extraction in the United Kingdom may be carried out by an end user downloading data, while online re-utilisation occurs where the transmission takes place. Amendments may be allowed where they clarify an existing cause of action, but not where they introduce primary liability for an act over which the court has found no jurisdiction.

The claimants operated and exploited football match data and alleged that the defendants, companies incorporated in Germany and Switzerland, infringed UK copyright and database right in that data.

The defendants applied for declarations that the English court lacked jurisdiction and for service of the claim form to be set aside. The claimants applied to amend their particulars of claim to clarify existing allegations and add claims based on communication to the public.

The court considered whether the pleading disclosed infringing acts in the United Kingdom, whether the defendants could be liable for authorisation or joint tortfeasance, the territorial location of database-right acts, and whether the proposed amendments raised the same cause and object as proceedings pending in Germany.

1. The court had jurisdiction over claims alleging authorisation of copyright infringement and joint liability for copyright infringement and database-right infringement. It lacked jurisdiction over claims alleging primary infringement by the defendants themselves in the United Kingdom.

2. Under the Judgments Regulation and the Lugano Convention, the claimants had to show a good arguable case of a UK act infringing UK copyright or database right. On factual issues, that required the court to assess which party had the better of the arguments on the available material. Where jurisdiction depended on a question of law or construction, the court decided that question directly.

3. The pleading adequately alleged reproduction by UK customers when they accessed the defendants’ pop-up windows. Although the defendants’ servers were abroad, the pleading also disclosed an arguable case that the defendants authorised those acts. Authorisation means granting or purporting to grant the right to perform the relevant act. It requires more than mere enablement, assistance or encouragement. The defendants’ control over the content of the pop-up windows supported the allegation.

4. The evidence and contractual terms also established a good arguable case of joint tortfeasance involving the defendants and customers. Mere corporate control, knowledge, approval or facilitation would not suffice, but the material suggested that the Swiss parent was involved in distribution.

5. There was a good arguable case that copyright subsisted and that the reproduced material represented a substantial part of the authors’ intellectual creation. The claimants also had a good arguable case on copying.

6. For database right, the defendants’ extraction occurred abroad. UK end users could nevertheless carry out extraction by downloading the data. The pleading also disclosed an arguable case of repeated and systematic extraction of insubstantial parts and of re-utilisation by customers.

7. The better construction of online re-utilisation was that the act of making database contents available by transmission occurred only in the state from which the transmission took place. That conclusion did not prevent jurisdiction over pleaded customer acts in the United Kingdom.

8. The amendments clarifying joint liability, and particularising joint tortfeasance, were allowed. Reliance on communication to the public was allowed insofar as it concerned customer acts based on facts already pleaded. Permission was refused insofar as the amendment alleged primary infringement by the defendants under section 20 of the Copyright Designs and Patents Act 1988. No reference was made to the CJEU because the remaining claims were adequate and a reference was unnecessary.