Football Dataco Ltd & Ors v Sportradar GmbH & Anor

Database right protects investment in obtaining, verifying or presenting data, but not investment in creating new information. Factual data collected and recorded during a live sporting event may be obtained data where the event is outside the collector’s control and others can independently observe it. Extraction is assessed by reference to what is transferred to another medium, including data automatically downloaded before it is displayed. A qualitatively substantial part depends on the investment associated with the extracted material. Repeated extraction of insubstantial parts infringes only where its systematic character would lead to reconstitution of the whole or a substantial part. A supplier becomes a joint tortfeasor only where it makes the infringing acts its own. Providing data abroad was insufficient, but a betting company’s directed promotional link and common design with customers were sufficient.

Football Dataco and related football organisations claimed database right in live match data collected by PA Sport. Two actions concerned Sportradar’s Live Scores service and its availability through Stan James’s website. The claimants alleged that customers extracted data from the database and that Sportradar and Stan James were jointly liable for those acts.

The trial addressed subsistence of database right, extraction of substantial or insubstantial parts, joint tortfeasance, abuse of rights and freedom of expression. Primary infringement by Sportradar through acts abroad was stayed pending a reference to the CJEU. The central issues were whether the live match data was obtained or created, what data was extracted, and whether the defendants had made the customers’ acts their own.

1. Subsistence. Article 7 of the Database Directive distinguishes investment in obtaining, verifying or presenting contents from investment in creating the data. Football fixture lists and runners-and-riders lists were created by the organisers. By contrast, goals and other sporting results were events outside the organisers’ control. Factual data collected and recorded about those events was obtained data, even though it did not previously exist in recorded material form. Data based solely on the Football Analyst’s personal judgment, such as selection of the worst player, was created data, but the material ultimately confirmed by match events or officials was obtained.
2. The claimants’ investment in the Football Live operation was substantial and separate from investment in organising the leagues. Database right therefore subsisted in the relevant portion of the PA database.
3. Extraction and substantial part. Extraction covered all information transferred to the punter’s computer when the Live Scores window was activated, not merely the information later displayed. The pre-defence collection of goals, scorers, timings, cards, expulsions and substitutions for non-televised matches was likely a qualitatively substantial part. The post-defence collection of goals and timings alone was not substantial, even assuming that all such data came from PA.
4. There was no sufficient evidence that individual punters repeatedly and systematically extracted insubstantial parts so as to reconstitute a substantial part. That aspect of the claim failed.
5. Joint liability. Applying the principle that a joint tortfeasor must make the infringing act his own, Sportradar was not jointly liable. Making data available on servers in Austria, even under agreements with betting companies, did not make the English extractions its own. Stan James was jointly liable because its directed Live Scores link encouraged customers to use the service under a common design and promoted its own betting service.
6. The abuse-of-rights defence failed because there was no artificial creation of the conditions for database protection. The Article 10 freedom-of-expression defence also failed; alternative sources existed and enforcement did not prevent meaningful reportage.
7. Accordingly, customers infringed before the defence date; Sportradar was not a joint tortfeasor; and Stan James was a joint tortfeasor for those acts.

First-instance judgment determining issues in two High Court actions. The judgment records that the question of Sportradar’s possible primary infringement through acts abroad had been stayed pending a reference to the CJEU by the Court of Appeal.