Football Dataco Ltd & Ors v Sportradar GmbH & Anor

Under article 27 of the Brussels Regulation EC 44/2001, identity of parties, cause and object is assessed autonomously and broadly. The cause includes the facts and rule of law relied on; the object is the end sought. English pleadings need allege facts capable of establishing a cause of action, without spelling out the precise legal basis. Factual match data and non-creative recording skill do not satisfy the intellectual-creation requirement for database copyright. A difficult question concerning the territorial location of online extraction or re-utilisation under the Database Directive was not acte clair and was referred to the CJEU.

The claimants alleged UK copyright and database-right infringement in Football Live, a database of live football match information. The defendants, German and Swiss companies, supplied data online to UK-facing betting services, while their servers were outside the United Kingdom.

Floyd J rejected the defendants’ jurisdiction challenge and partly allowed and partly refused amendments to the claim: [2010] EWHC 2911 (Ch). The defendants appealed on jurisdiction. The claimants appealed on the treatment of their database-right claim. The central issues were whether England was first seised under article 27 of the Brussels Regulation EC 44/2001 and where online transmission constituted extraction or re-utilisation.

1. Disposition. The defendants’ jurisdiction appeal was allowed in part and dismissed in part. The English court was first seised of the database-infringement dispute. The claimants’ principal appeal raised a question referred to the Court of Justice of the European Union.
2. Copyright. Under article 3 of the Database Directive, some material in a database might involve intellectual creation, but the match events alleged to have been copied were mere data. Skill in recording an event, such as identifying a scorer in a goalmouth scramble, was not creative skill. A statement of truth did not establish intellectual creation in the material taken. The proceedings therefore did not contain a copyright claim to the necessary standard when commenced. The argument on authorising copyright infringement under section 16(2) of the Copyright Designs and Patents Act 1988 became irrelevant.
3. Jurisdiction under article 27. English procedural law requires pleading facts which, if proved, establish a cause of action. The precise legal basis need not be pleaded: Letang v Cooper [1965] 1 Q.B. 232 and Re Vandervell’s Trusts (No. 2) [1974] Ch 269. The allegations sufficiently raised joint tortfeasorship with bet365 and ultimate UK users.
4. The autonomous concepts of cause and object in article 27 have broad meanings. The relevant inquiry concerns the same parties, cause and object. The court applied the approach in Gubisch Maschinenfabrik v Giulio Palumbo Case 144/86 and The Tatry C-406/92. The heart of the claim was database infringement, and the relief sought was damages and an injunction. England was therefore first seised.
5. Reference and stay. The question whether sending data from a server in one Member State to a user in another was extraction or re-utilisation, and where that act occurred, was important, difficult and not acte clair. The court referred the settled questions to the CJEU. The direct database-infringement claims were stayed pending the answer. The joint-tortfeasorship claim was not stayed because it did not depend on the referred questions. Jurisdiction based on harmful events under article 5(3) of the Convention followed from the adequately pleaded joint tort.

• Court of Appeal (Civil Division) — The defendants’ jurisdiction appeal was allowed in part and dismissed in part. A question on the territorial scope of database-right infringement was referred to the CJEU, with direct infringement claims stayed.
• Chancery Division (Intellectual Property) — Floyd J rejected the defendants’ jurisdiction challenge and partly allowed and partly refused amendments to the claim: [2010] EWHC 2911 (Ch).