ECJ Decisión “Football Dataco”: determination of the place where reutilisation of a database takes place
The Court of Justice of the European Union has been asked once again to interpret Directive 96/9 on the protection of data bases. At this time, its judgement of 18 October 2012, C-173/11, “Football Dataco II” (this is the second judgement in which Football Dataco is involved), relates to the concept of “re-utilisation” and the location of the place where such an act takes place. The most interesting part of the judgement refers not to the interpretation of concepts within the Directive, but to the relevance of the determination of the place where the act of reutilisation takes place for the purpose of applying certain instruments of Private international law such as the Brussels I Regulation – art. 5.3 grants jurisdiction to the courts of the place where the harmful event took place – and Rome II Regulation – art. 8.1 states that the law applicable to infringement of IPR is that of the country from which protection is claimed. The facts of the case are the following: Football Live (owned by Football Dataco) is a compilation of data about football matches in progress, including matches of the English Premier League. Sportradar runs a similar database of football matches all around Europe (including the Premier League). Such database is licensed to several betting services, including two from England. Presumably, Sportradar copies the data of the Premier League matches from Football Live. Because of that assumption, Football Dataco filed a complaint in England. Sportradar challenged the jurisdiction of the English courts because the alleged infringing act did not occurred in England but in Germany, where Sportradar has its servers. The CJUE did not agree with Sportradar. According to its decision, “the sending by one person, by means of a web server located in Member State A (Germany), 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 (England), 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 (England), 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 (England), which is for the national court to assess. The decision also provides very useful information on the evidences that a judge should take into account in order to determine whether a website owner’s intention to target persons in a particular territory, something that is essential to establish the existence of a harmful event in that territory.
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