Football Dataco Ltd & Ors v Stan James Plc & Ors

A live sports-data collection may be a protected database where it contains independent factual elements arranged for individual retrieval and substantial investment has been made in obtaining, verifying or presenting them. Under Database Directive 96/9/EC, recording objective events as they occur is obtaining existing information, not creating the underlying data.

A substantial part is assessed by the investment actually made in the extracted material. A website operator is a joint tortfeasor where use of its facility inevitably causes users to infringe, rather than merely giving them a facility they may independently choose to use unlawfully.

Football Dataco and associated claimants operated Football Live, a database of live data gathered at football matches by analysts and centrally processed. Sportradar supplied its Live Scores service to Stan James, whose website presented the service to United Kingdom users. The claimants alleged infringement of the sui generis database right.

Floyd J held that Football Live was protected, that users infringed in respect of the more extensive pre-defence data but not the later goals-and-times data, and that Stan James, but not Sportradar, was a joint tortfeasor. He rejected defences based on abuse of rights and Article 10.

Following an earlier ruling of the CJEU on jurisdiction, Sportradar conceded that it targeted United Kingdom users. The appeals concerned subsistence, infringement by extraction, joint tortfeasance, and the asserted defences.

1. Appeals allowed in the claimants’ favour. Football Live was a database within Article 1(2) of the Database Directive 96/9/EC. Its individual match-event data had independent informative value, was systematically arranged, and was individually accessible. The Directive protects the database, not the underlying facts. The fact that factual material is recorded live, or that the database also contains evaluative material, does not prevent protection.

2. Football Live satisfied Article 7(1). The investment in deploying analysts, processors and a reliable reporting system obtained objective facts generated by the matches. It was not investment in creating those facts. The distinction in BHB v William Hill Case C-203/02 excludes investment in creating independent materials, such as the fixture list itself, but does not exclude the recording and collection of objective events. No separately identifiable investment in the objective data was required merely because the same operation also collected subjective assessments.

3. A user of the Stan James pop-up extracted the whole Live Scores database when it was transferred, in encrypted form, to the user’s computer. Extraction did not depend on which data the user later chose to reveal. The data taken from Football Live before and after Sportradar’s defence was qualitatively substantial. The relevant inquiry was the investment actually made in obtaining the data, not the hypothetical marginal cost of collecting only goals and times. The judge’s contrary conclusion on the post-defence data was therefore reversed.

4. Both Sportradar and Stan James were joint tortfeasors with United Kingdom users. Their coordinated provision of Live Scores targeted those users. Stan James presented the service as its own, and use of it inevitably caused the user’s infringing extraction. This was not a case of merely supplying a facility which the consumer could choose to use lawfully or unlawfully. Stan James could not rely on lack of knowledge, because it procured acts of primary infringement which did not themselves require knowledge.

5. The defences of abuse of rights and Article 10 of the European Convention on Human Rights failed. The right-holder was willing to license the data and competitors could collect data independently. The claims did not prevent meaningful reporting of football matches.

• Court of Appeal (Civil Division) — allowed FDC’s appeals on Sportradar’s joint liability and post-defence infringement; dismissed the defendants’ appeals: [2013] EWCA Civ 27.
• CJEU — on an earlier reference from the Court of Appeal, ruled that jurisdiction existed where the foreign supplier intended to target members of the United Kingdom public: [2012] EUECJ C-173/1.
• High Court, Chancery Division, Intellectual Property — held that Football Live was protected; found pre-defence but not post-defence user infringement; held Stan James, but not Sportradar, jointly liable: [2012] EWHC 1185 (Ch).