Football Dataco v Stan James and Sportradar, Court of Appeal
In a match that seemingly goes on and on through injury time, extra time and beyond, Stan James and Sportradar have lost an appeal over a finding of joint infringement of database rights for data published on their website that had come from Football Dataco. For anyone hoping that this would be the final result, watch this space: the bookmakers are gambling all on one final battle in the Supreme Court. For now, the second highest court in England has given a damming verdict on their data use practices.
Football Dataco creates and exploits data from English football games through its “Football Live” graphical user interface. The data includes scores, penalties, cards and substitutions and is updated live while the games are in progress. Football Dataco uses professional analysts to gather the information including providing a commentary on the game, and this includes their judgement on validity and identity of goalscorers. Sportradar ran a “Live Scores” website service in competition with Football Dataco using data that had emanated from Football Live. Stan James provided a “Live Score” website service from which users could click a box and download data coming from Sportradar (and therefore ultimately from Football Live).
In 2012, the High Court ruled that Football Dataco had database rights in Football Live, Stan James’ users had infringed that right, and Stan James was jointly liable for those infringements. There had been sufficiently large investment to mean that database right existed, and sufficient use of the data to constitute infringement. The Court had ruled, however, that there was no longer infringement when the amount of data used was decreased just to data of the goals and their timings as that information had not required substantial enough investment for database right infringement.
Later in 2012, the European Court of Justice ruled that when a website user requested data from a website, the infringing act occurred where the user downloaded the data (ie where the user was based) as long as the website intended to target the public there. This meant that Sportradar would be on the hook for database right infringement by users.
The Court of Appeal has upheld the High Court’s decision against Stan James. In fact, it has widened it, by ruling that Stan James was still infringing even after it had reduced the data used. Meanwhile, Sportradar was also a joint infringer with users. In widening the ruling against Stan James, Lord Justice Jacob said that it was irrelevant that the data could have been collected at low cost; what actually mattered was the scale of the actual investment, and the fact was that a lot of investment was needed to have someone at each of the football grounds, even if that did not need to be a skilled person.
As regards Stan James, the Court of Appeal said that the website operator had turned each user accessing the site into an infringer. Stan James was therefore a joint infringer. Stan James was responsible for the user’s infringement because the user naturally infringed the database right as soon as they clicked the pop-up box.
Meanwhile, the Court of Appeal decided that Sportradar had targeted UK users when it supplied data to Stan James and so was also jointly liable for infringing acts of Stan James’ customers. This was academic, though, because Sportradar was also liable for primary infringement of database rights in light of the ECJ’s decision because of its intention to target English users.
Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “The biggest impact of this case is that where a website contains material that infringes someone’s intellectual property rights (such as copyright or database right) and users will inevitably copy that material when they access the website, the website operator is a joint infringer with the user. This could have massive implications for websites that may not know whether their material infringes third party intellectual property rights or not.”