Summary
The first claimant, Football Dataco, was owned by various bodies that were engaged in organising professional football matches in the UK. The defendants were part of the Sportradar group of companies. GmbH was a German company. AG was a Swiss company. The proceedings were for the infringement of the claimants’ copyright and claimants’ database right.
The claim form in the English proceedings was issued on 23rd April 2010.
On 14th July 2010, the defendants in the English proceedings started proceedings in Germany where they sought a declaration for non-liability against the claimants.
In England, the defendants challenged the jurisdiction of the English court.
The jurisdictional challenge was dismissed by the English High Court. It was held that the English court had jurisdiction. Mr Justice Floyd refused to make a reference to the CJEU. The judge stated:
“7 […] it is common ground that the claimants must show a “good arguable case” of copyright and/or database right infringement in order to establish jurisdiction in this country. In default, GmbH and AG would have to be sued in their states of domicile, that being the primary rule of jurisdiction under those instruments. Moreover, copyright and database right are strictly territorial rights. No copyright or database right other than UK copyright or database right is asserted in the action. It follows that it is necessary for the claimants to show in both cases that there is a good arguable case of an act in the UK which infringes those rights.
[…]
99 I have come to the conclusion that the court has jurisdiction over the claim for authorising, and joint liability for, copyright infringement and the claim for joint liability for database right infringement. […]” [99]
The Court of Appeal dismissed the defendants’ appeal on the issue of jurisdiction. Lord Justice Jacob held that:
“38 Accordingly I would dismiss the defendants' appeal concerning jurisdiction over the database infringement claims.
39 That makes it unnecessary to say much about the claimants' point based on Art.5 (3) of the Convention. They say they can sue here because this is where the harmful events complained of occur. Given that joint-tortfeasorship is adequately pleaded (as I have held), then jurisdiction on this basis follows too.” [2011] EWCA Civ 330 [38-39]
That said, a reference to the CJEU was made by the Court of Appeal. The question, which was asked, was agreed to be as follow:
“47 Where a party uploads data from a database protected by sui generis right under Directive 96/9/EC (‘the Database Directive’) onto that party's webserver located in member state A and in response to requests from a user in another member state B the webserver sends such data to the user's computer so that the data is stored in the memory of that computer and displayed on its screen (a) is the act of sending the data an act of ‘extraction’ or ‘re-utilisation’ by that party? (b) does any act of extraction and/or re-utilisation by that party occur (i) in A only; (ii) in B only; or (iii) in both A and B?” [2011] EWCA Civ 330 [47]
In response, the CJEU held that:
“47 […] the answer to the question is that art.7 of Directive 96/9 must be interpreted as meaning that the sending by one person, by means of a web server located in Member State A, of data previously uploaded by that person from a database protected by the sui generis right under that directive to the computer of another person located in Member State B, at that person’s request, for the purpose of storage in that computer’s memory and display on its screen, constitutes an act of “re-utilisation” of the data by the person sending it. That act takes place, at least, in Member State B, where there is evidence from which it may be concluded that the act discloses an intention on the part of the person performing the act to target members of the public in Member State B, which is for the national court to assess. “Case C-173/11, Football Dataco [2013] 1 CMLR 29 [47]