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||Neutral Citation Number:  EWCA Civ 27
||Case Nos: A3/2012/1349, 1352, 1364 and 1366
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE FLOYD
 EWHC 1185 (Ch)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||6 February 2013
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE LEWISON
SIR ROBIN JACOB
|| FOOTBALL DATACO LTD AND OTHERS
Appellants in appeals 1364 and 1366
||- and -
||STAN JAMES plc AND OTHERS
Appellants in appeal 1349
||SPORTRADAR GmbH AND ANOTHER
Appellants in appeal 1352
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
James Mellor Q.C. and Lindsay Lane (instructed by DLA Piper UK LLP) for the Claimants
Geoffrey Hobbs Q.C. and Philip Roberts (instructed by Olswang) for Stan James
Michael Silverleaf Q.C. and Hugo Cuddigan (instructed by Bird & Bird) for Sportradar
Hearing dates: 3 and 4 December 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir Robin Jacob:
- These are four appeals and cross appeals from a judgment of Floyd J of 8th May 2012,  EWHC 1185 (Ch). The judgment was in two actions, called Sportradar and Stan James respectively.
- Mr James Mellor QC and Miss Lindsay Lane represented the claimants (whom I will collectively call FDC, nothing turning on the distinction between them), Mr Michael Silverleaf QC and Mr Hugo Cuddigan represented Sportradar (as I collectively call the German/Austrian defendants) and Mr Geoffrey Hobbs QC and Mr Philip Roberts represented the two Stan James defendants (whom I can call collectively Stan James). Other defendants have come out of the case for various reasons.
Who the parties are and what they do
- FDC (the details of which company comprised within FDC owns what do not matter) claims to own a sui generis database right pursuant to the provisions of the Database Directive (96/9/EC). Part of the data in FDC's database consists of "live" data about football matches in the English and Scottish leagues, the Carling Cup and other English and Scottish matches. The part of the database containing this live data is called Football Live in these proceedings. A match which is the subject of FDC's system is called an FDC match.
- The live data is obtained by FDC in the following way. Whenever an FDC match is to be played FDC sends (and pays for) a "football analyst" (FBA) to watch it at the ground. Many of the FBAs are ex-professional footballers. They normally sit in the press box. They have to be there an hour before kick-off and report in by mobile phone to an individual at the central information centre run by FDC. The person they report to is called a Sports Information Processor (SIP). The reason for requiring the early report in is to ensure that the FBA is there: if he does not report in an hour before kick off there is time to put in place a replacement full coverage is very important to the database. The FBA is provided with two mobile telephones on different networks against the possibility of a breakdown.
- During the match the FBA maintains constant contact with his SIP. He provides something "in the nature of a running commentary" as the Judge called it. The FBA must tell his SIP about a whole range of events on the field as soon as they occur: goals and their times, scorers, assists, type of shot, misses and their types, cards, fouls and who by, saves, corners, substitutions and so on. There are other matters too matters clearly of opinion such as man of the match, dominant player for the last 10 minutes, severity of a foul and the like.
- The process is not all one way. For instance when a goal is scored the SIP is required to confirm with his FBA the details he has been given (e.g. number of goalscorer, team, body part used, position of scorer, and net position).
- FDC estimated that the operation costs in the order of £600,000 per season. The defendants suggested it was something of an overestimate but the judge held that the "overall investment in the FBA/SIP operation is substantial" a finding not challenged on appeal. It is hardly a surprising finding such a large scale operation is bound to cost a lot.
- FDC exploits Football Live by licensing it to various customers, for instance the BBC.
- Sportradar has and maintains a very large database of sports statistics called Betradar. Within Betradar is a section is called Live Scores. So far as the FDC matches within Live Scores are concerned the Judge summarised the facts:
 In-game data (goals, penalties, goal scorers, yellow card, red cards, substitutions) is entered or approved manually by operators. Operators monitor all matches broadcast live on television channels accessible to them. Every FA Premier League Match is broadcast live on one of these channels. If an operator misses an event on that channel, he or she will use an alternative source.
 Where no live broadcast is available, operators seek a reliable, fast live internet stream. These are rarely available.
 If no broadcast or reliable, fast, live internet stream is available the most common source is Sky Sports News' live TV broadcast. On Saturday this is called "Soccer Saturday". The claimants point out that Soccer Saturday uses data under licence from PA [the company which administers FDC's rights], although it also includes live reports from grounds.
 For Football Live Matches in the Championship, English League One, English League Two and Scottish Premier League and First Division where no live broadcast or internet stream is available, only goals and times are included in Live Scores.
 Operators also monitor manually a list of 16 online textual sources. The claimants maintain that at least seven of these sources use data under licence from PA. However amongst these are three websites which offer in game betting and for which the PA data would be too slow. Examples of the information available were produced in evidence. This information is independent of the claimants. Whilst not comprehensive, the information is not limited to Premier League matches, but extends to other leagues as well. It follows that PA are not by any means the only source of the relevant data, and, importantly, are not the first to disseminate it.
 Sportradar also use automatic monitoring of sports broadcasts and sports information published online. Lists of the websites monitored in this way are in Schedules 2-9 to the Confidential Annex to the Defence. Information from these automatically monitored sources is only incorporated into Live Scores once it has been assessed manually by an operator. The claimants point out that at least ten of these sources use data licensed from PA.
 Prior to the date of the defence the processes differed in that, data for red cards, yellow cards and substitutions would be included for Championship matches and below. Moreover the automatic monitoring of this data allowed automatic incorporation into Live Scores. The claimants say that these sources are licensed by PA.
- In summary therefore, Sportradar's Live Scores, so far as it consists of live statistics about FDC matches, includes data extracted from Football Live. As regards the Premier League, it does its own monitoring from live TV broadcasts. But for leagues below that (the substantial majority of matches) it uses other sources. For all these matches Live Scores contains less data now (goals and times only "post defence data") than it did before the defence was filed (goals, scorers, times, cards, and substitutions "pre-defence data"). How much of the data is taken directly or indirectly from FDC's Football Live and its significance are matters in contest in this appeal.
(c) Stan James
- Stan James are bookmakers. They conduct their business in part through a website stanjames.com which is admittedly aimed at inter alia UK punters although hosted in Gibraltar. The website has a button "Live Scores." (Stan James removed this button from its website on 20 March 2012, shortly before the trial, but even so I will speak of it in the present tense.) If the punter hits this a pop-box appears. The punter's web-browser communicates with the Live Scores section of Betradar and all the Live Scores data is downloaded into the punter's computer. However it is only in machine readable form. What the punter sees is a list of featured games and a magnifying glass icon against each match. By clicking on the icon the punter sees detailed facts about that match (more before the defence than after, as I have said).
- Technically what happens when the icon is clicked is that a "key" is applied to the data in the punter's computer so that the data is revealed in human readable form. There is an advantage to doing it this way rather than downloading the data directly from Sportradar's Live Scores: it is quicker and independent of the speed of the link between the punter's computer and Sportradar's.
- Most punters would probably think that the pop-box is provided by Stan James itself. The url says http://www.livescores.betradar.com/?alias=stanjames but that is hardly enough to tell the punter that he is leaving the Stan James website via a link to Sportradar's. The pop-up is presented as a Stan James product. Thus it is headed with the name Stan James in its characteristic green stripe get-up and lettering. Mr Hobbs described it as having been "skinned" ("cloaked" might be a better word) as Stan James. Under the contract between Stan James and Sportradar, Stan James pays Sportradar 2,050 per month for this aspect of the services it provides (there are others, irrelevant here).
The Judge's Findings
- Floyd J held that:
(a) A sui generis database right subsists in the database consisting of information gathered "live" by the claimants' (FDC's) agents from football matches as those matches proceed.
(b) UK punters using the Stan James website:
(i) extracted or re-utilised a substantial part of, and thus infringed, that database right when they accessed the pre-defence data;
(ii) did not extract or re-utilise a substantial part of that database when they accessed information consisting only of the post-defence data and thus did not infringe for that reason;
(iii) did not either repeatedly or systematically extract insubstantial parts of that database and thus did not infringe for that reason either.
(c) Sportradar were not joint tortfeasors with the UK punters who had infringed pre-defence;
(d) Stan James were joint tortfeasors with the UK punters who had used its website pre-defence, but not thereafter because of holding (b)(ii) above.
(e) There were no defences of freedom of expression or abuse of rights.
- All of the parties appeal the findings adverse to them, save that FDC does not appeal the adverse finding about punters not repeatedly and systematically re-utilising or extracting an insubstantial part ((b)(iii) above).
- However, after these points were before the Judge, the CJEU ruled on the earlier reference from this Court asking whether the UK courts have jurisdiction over Sportradar in respect of allegations of primary infringement of the UK sui generis right. The court ruled that there is such jurisdiction where a party abroad has an intention to target members of the UK public,  EUECJ C-173/1. Sportradar now concedes that it had that intention. The concession was inevitable since Sportradar sells Live Scores to Stan James to provide it to UK customers, thus clearly selling for and targeting the UK market.
- This has consequences. First, there is the position as regards Sportradar's primary infringement. For whilst FDC does not challenge the Judge's decision that the punters do not repeatedly and systematically extract or re-utilise insubstantial parts of Football Live, it contends that Sportradar does exactly that and so is directly liable on that basis, even if the post-defence data does not amount to a substantial part. The point does not arise directly on the appeals for it was not, whilst the reference was pending, live at the trial below. At the time of hearing of the appeal, Sportradar had conceded targeting the UK but the parties' correspondence concerning the point about its taking insubstantial parts had not been concluded.
- The second consequence is that the points about joint-tortfeasorship and whether the punter extracts the whole of the Live Scores database are of much less real significance. The commercially significant questions are whether there is a sui generis right in Live Scores, whether Sportradar infringed (pre-defence) and infringes (post-defence) that right, and if so whether there is any other defence by way of freedom of expression or abuse of rights.
Subsistence of sui generis database right
(a) The legislation
- The sui generis right is created by the UK implementation of Art. 7 of the Database Directive 96/9/EC. As is now standard practice counsel did not bother to refer to the UK Act implementing the Directive, for there is no point in doing so. All that matters is the language of the Directive itself. The provisions relevant to subsistence read:
For the purposes of this Directive 'database' shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.
1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
(b) Is Football Live a "database" as defined?
- The first question is whether Football Live constitutes a "database" as defined. Free from any reference to the recitals and using just the English language version of the Directive, the answer would surely be "yes." The data about the matches is collected by the FBA, supplied to the SIP, and then entered into FDC's computer. Therein the data is arranged in a systematic and methodical way so that it can be accessed by electronic means.
- Mr Hobbs sought to cast doubt on this conclusion. He pointed out first that the English language version of the Directive differs from most of the other language versions. Most of these do not use the word "materials" but a word more approximating to the word "elements" (e.g. ιlιments in French, Elementen in German, elementi in Italian and elementos in Spanish). I am not convinced that there is any significance in this. In the context "materials" in the English version clearly means the individual items in the database which could equally be called "elements." So the basis of this point runs into the sand. If anything the other language versions confirm that "materials" should be read as "elements" and not in the sense of some pre-existing thing which serves to undermine that part of Mr Silverleaf's argument under Art. 7 which suggests there can only be protection if the database consists of or at least contains pre-existing already determined ("material" in that sense) data.
- Next Mr Hobbs went to the recitals. He referred us to:
(13) Whereas this Directive protects collections, sometimes called 'compilations', of works, data or other materials which are arranged, stored and accessed by means which include electronic, electromagnetic or electro-optical processes or analogous processes;"
(17) Whereas the term 'database' should be understood to include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts, and data; whereas it should cover collections of independent works, data or other materials which are systematically or methodically arranged and can be individually accessed; whereas this means that a recording or an audiovisual, cinematographic, literary or musical work as such does not fall within the scope of this Directive;
(45) Whereas the right to prevent unauthorized extraction and/or re-utilization does not in any way constitute an extension of copyright protection to mere facts or data;
(46) Whereas the existence of a right to prevent the unauthorized extraction and/or re-utilization of the whole or a substantial part of works, data or materials from a database should not give rise to the creation of a new right in the works, data or materials themselves;
- He submitted that there was a "conundrum":
"an appalling an appalling dichotomy between data which is a qualifying constituent for the purposes of protection of the database in Art. 1(2) but the same word is used to describe that which is not protected as set forth in recital 46".
This, he said, amounted to such uncertainty that a reference was called for.
- I do not accept any of this. The recitals and Art. 2(1) provide what to my mind is a completely clear concept so clear that it is acte clair. A qualifying database is a collection of data. All that recitals 45 and 46 are saying is that there is no protection for the underlying data as such. What is protected is the database itself. Extraction of data from that (if enough to amount to a substantial part see below) is what is prevented and all that is prevented. No copyright or like right is created in the underlying data. Somewhat peculiarly the last part of recital 17 (which looks like the result of some special lobbying by the record industry) simply sets out the position for the special case of "a database consisting of a collection of recordings or audiovisual, cinematographic, literary or musical works whose elements are the individual and independent recordings, films, literary or musical works." The element is not protected, the collection is.
- Furthermore I consider the Court has already confirmed this. In Fixtures Marketing v OPAP Case C-442/02 it specifically held that a football fixture list was a "database" within Art. 1.2. The Court was asked, inter alia, "what is the definition of database?" And it answered that question before going on to consider whether the database qualified for the sui generis right. The following passages in the Judgment explain why and set out the wide concept of database explicitly:
 A database in the terms of the directive is defined in Article 1(2) as 'a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means'.
 As both Fixtures and the Commission submit, there are several indications of the intention of the Community legislature to give the term database as defined in the directive, a wide scope, unencumbered by considerations of a formal, technical or material nature.
 For instance, according to Article 1(1) of the directive, it concerns the legal protection of databases 'in any form'.
 Although the proposal for a Council Directive on the legal protection of databases (OJ 1992 C 156, p. 4), presented by the Commission on 15 April 1992 concerned exclusively electronic databases according to the definition of database contained in Article 1(1) of that proposal for a Directive, it was agreed in the course of the legislative process, that 'protection under this Directive should be extended to cover non-electronic databases', according to the 14th recital of the preamble to the directive.
 According to the 17th recital of the preamble to the directive, 'the term "database" should be understood to include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts, and data'. The fact that the data or information at issue relate to a sporting activity thus does not preclude the database from being recognised as such in the terms of the directive.
 Whereas, in its opinion of 23 June 1993 on the Commission proposal for a Council Directive on the legal protection of databases (OJ 1993 C 194, p. 144), the European Parliament had suggested defining a database as a collection of a 'large number' of data, works or other materials, that condition no longer appears in the definition in Article 1(2) of the directive.
 For the purposes of determining whether there is a database within the meaning of the directive, it is irrelevant whether the collection is made up of materials from a source or sources other than the person who constitutes that collection, materials created by that person himself or materials falling within both those categories.
 Contrary to the contentions of the Greek and Portuguese Governments, nothing in the directive points to the conclusion that a database must be its maker's own intellectual creation to be classified as such. As the Commission points out, the criterion of originality is only relevant to the assessment whether a database qualifies for the copyright protection provided for by Chapter II of the directive, as is clear from Article 3(1) and from the 15th and 16th recitals of the preamble to the directive.
 Against the background of a wide interpretation various aspects of the directive demonstrate that the term database within the meaning thereof is more specifically defined in terms of its function.
 A reading of the recitals of the preamble to the directive reveals that, given the 'exponential growth, in the Community and worldwide, in the amount of information generated and processed annually in all sectors of commerce and industry' as the 10th recital states, the legal protection provided by the directive is intended to encourage the development of systems performing a function of 'storage' and 'processing' of information, according to the 10th and 12th recitals.
 Thus, classification as a database is dependent, first of all, on the existence of a collection of 'independent' materials, that is to say, materials which are separable from one another without their informative, literary, artistic, musical or other value being affected. On that basis, a recording of an audiovisual, cinematographic, literary or musical work as such does not fall within the scope of the directive, according to the 17th recital of the preamble to the directive.
 Classification of a collection as a database then requires that the independent materials making up that collection be systematically or methodically arranged and individually accessible in one way or another. While it is not necessary for the systematic or methodical arrangement to be physically apparent, according to the 21st recital, that condition implies that the collection should be contained in a fixed base, of some sort, and include technical means such as electronic, electromagnetic or electro-optical processes, in the terms of the 13th recital of the preamble to the directive, or other means, such as an index, a table of contents, or a particular plan or method of classification, to allow the retrieval of any independent material contained within it.
 That second condition makes it possible to distinguish a database within the meaning of the directive, characterised by a means of retrieving each of its constituent materials, from a collection of materials providing information without any means of processing the individual materials which make it up.
 It follows from the above analysis that the term database as defined in Article 1(2) of the directive refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.
 In the case in the main proceedings, the date and the time of and the identity of the two teams playing in both home and away matches are covered by the concept of independent materials within the meaning of Article 1(2) of the directive in that they have autonomous informative value.
 Although it is true that the interest of a football league lies in the overall result of the various matches in that league, the fact remains that the data concerning the date, the time and the identity of the teams in a particular match have an independent value in that they provide interested third parties with relevant information.
 The compilation of dates, times and names of teams relating to the various fixtures in a football league is, accordingly, a collection of independent materials. The arrangement, in the form of a fixture list, of the dates, times and names of teams in those various football matches meets the conditions as to systematic or methodical arrangement and individual accessibility of the constituent materials of that collection. The fact, raised by the Greek and Austrian Governments, that lots are drawn to decide the pairing of the teams is not such as to call into question the above analysis.
 It follows that a fixture list for a football league such as that at issue in the case in the main proceedings constitutes a database within the meaning of Article 1(2) of the directive.
- I think this is completely clear. Paragraph 32 formed the first dispositive conclusion of the Court. Mr Hobbs suggested that its reference in paragraph  to the fixture details having "autonomous informative value" itself created uncertainty worthy of a reference. He said:
The question is what are the criteria for determining whether something has "autonomous informative value"? What degree of symbiosis between one morsel of information and another morsel of information prevents it from being regarded as autonomous and what degree of separation or disparity allows it to be treated as autonomous for this purpose? There is nobody on earth who knows the answer to that question. This is a really abstract, high-level concept.
- I do not agree there is any difficulty at all. The court was merely saying that the fixture information about a particular match was independent information. As such it could form an element of a database.
- Mr Hobbs also tried to get something out of the fact that the conversation between the FBA and his SIP was in the nature of a running commentary. He submitted that it was a literary work. It was "not appropriate to dismember it into molecular segments," thereby converting it into a database. He emphasised his point by asking forensically why the judgment of Floyd J in this case was not itself a database. His answer was that it was a copyright work in itself and thus was not, according to recital 46, to be the subject of a new right.
- Ingenious though the argument is, it fails. I see nothing in the Directive which says that if a collection of data otherwise qualifying for a database right is contained within a copyright work, that collection cannot also be the subject of a sui generis right. The Directive simply does not work that way. A database of words otherwise qualifying for protection would not lose that protection if its elements were accessibly incorporated into a novel, for instance being used at the start of every paragraph.
- The upshot is that Football Live is indisputably a database within the meaning of the Directive.
(c) Does Football Live qualify for protection under Art.7?
- I turn to the other half of the question. Is Football Live a database which qualifies for protection? Art. 7(1) sets out the conditions. There must be "qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents". This test has been considered by the Court in the quartet of horseracing/football fixture cases, BHB v William Hill Case C-203/02, Fixtures Marketing v Oy Veikkaus Case C-46/02, Fixtures Marketing v Svenska Spel Case C-338-02 and the OPAP case, supra. In all these cases the Court effectively ruled that the right did not exist.
- Broadly it did so by saying that investment in creating data was not the right kind of investment. So that if only that kind of investment is involved in the creation of a database, there is no sui generis right in it. Broadly the defendants contend that is the position here. Moreover, even if that is not so, they say that there is no independent investment in any database which could qualify for protection. The detail of the argument is more elaborate than that, although in the end I think the answer is clear. I turn to it now.
- I begin by quoting the key passages from the judgment in BHB:
The second and third questions, concerning the concept of investment in the obtaining or verification of the contents of a database within the meaning of Article 7 (1) of the directive
 By its second and third questions the referring court seeks clarification of the concept of investment in the obtaining and verification of the contents of a database within the meaning of Article 7(1) of the directive.
 Article 7(1) of the directive reserves the protection of the sui generis right to databases which meet a specific criterion, namely to those which show that there has been qualitatively and/or quantitatively a substantial investment in the obtaining, verification or presentation of their contents.
 Under the 9th, 10th and 12th recitals of the preamble to the directive, its purpose, as William Hill points out, is to promote and protect investment in data 'storage' and 'processing' systems which contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity. It follows that the expression 'investment in ... the obtaining, verification or presentation of the contents' of a database must be understood, generally, to refer to investment in the creation of that database as such.
 Against that background, the expression 'investment in ... the obtaining ... of the contents' of a database must, as William Hill and the Belgian, German and Portuguese Governments point out, be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.
 That interpretation is backed up by the 39th recital of the preamble to the directive, according to which the aim of the sui generis right is to safeguard the results of the financial and professional investment made in 'obtaining and collection of the contents' of a database. As the Advocate General notes in points 41 to 46 of her Opinion, despite slight variations in wording, all the language versions of the 39th recital support an interpretation which excludes the creation of the materials contained in a database from the definition of obtaining.
 The 19th recital of the preamble to the directive, according to which the compilation of several recordings of musical performances on a CD does not represent a substantial enough investment to be eligible under the sui generis right, provides an additional argument in support of that interpretation. Indeed, it appears from that recital that the resources used for the creation as such of works or materials included in the database, in this case on a CD, cannot be deemed equivalent to investment in the obtaining of the contents of that database and cannot, therefore, be taken into account in assessing whether the investment in the creation of the database was substantial.
 The expression 'investment in ... the ... verification ... of the contents' of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The resources used for verification during the stage of creation of data or other materials which are subsequently collected in a database, on the other hand, are resources used in creating a database and cannot therefore be taken into account in order to assess whether there was substantial investment in the terms of Article 7(1) of the directive.
 In that light, the fact that the creation of a database is linked to the exercise of a principal activity in which the person creating the database is also the creator of the materials contained in the database does not, as such, preclude that person from claiming the protection of the sui generis right, provided that he establishes that the obtaining of those materials, their verification or their presentation, in the sense described in paragraphs 31 to 34 of this judgment, required substantial investment in quantitative or qualitative terms, which was independent of the resources used to create those materials.
 Thus, although the search for data and the verification of their accuracy at the time a database is created do not require the maker of that database to use particular resources because the data are those he created and are available to him, the fact remains that the collection of those data, their systematic or methodical arrangement in the database, the organisation of their individual accessibility and the verification of their accuracy throughout the operation of the database may require substantial investment in quantitative and/or qualitative terms within the meaning of Article 7(1) of the directive.
 In the case in the main proceedings, the referring court seeks to know whether the investments described in paragraph 14 of this judgment can be considered to amount to investment in obtaining the contents of the BHB database. The plaintiffs in the main proceedings stress, in that connection, the substantial nature of the above investment.
 However, investment in the selection, for the purpose of organising horse racing, of the horses admitted to run in the race concerned relates to the creation of the data which make up the lists for those races which appear in the BHB database. It does not constitute investment in obtaining the contents of the database. It cannot, therefore, be taken into account in assessing whether the investment in the creation of the database was substantial.
 Admittedly, the process of entering a horse on a list for a race requires a number of prior checks as to the identity of the person making the entry, the characteristics of the horse and the classification of the horse, its owner and the jockey.
 However, such prior checks are made at the stage of creating the list for the race in question. They thus constitute investment in the creation of data and not in the verification of the contents of the database.
 It follows that the resources used to draw up a list of horses in a race and to carry out checks in that connection do not represent investment in the obtaining and verification of the contents of the database in which that list appear.
- Mr Silverleaf particularly relied on [34-36]. This he contended was further clarified in Oy Veikkaus where the court said:
 The presentation of a football fixture list, too, is closely linked to the creation as such of the data which make up the list, as is confirmed by the absence of any mention in the order for reference of work or resources specifically invested in such presentation. It cannot therefore be considered to require investment independent of the investment in the creation of its constituent data.
- Building on these passages, Mr Silverleaf contended firstly that there can be no Art. 7 right unless there is investment in collecting together materials which have already been recorded. The process of actually recording data is to be regarded as creative in the same way as the process of creating a football fixture list or list of finally approved runners and riders. Secondly, even if that be wrong, it is necessary that there be separately identifiable investment in the creation of the database; that it is not enough if there is a single indivisible investment in creating a database which is a mixture of uncreative and creative data elements.
- Mr Silverleaf, supported by Mr Hobbs, submitted that both points were acte clair in the defendants' favour. But if either or both were not, then we should refer the point(s) in question. Mr Mellor submitted the contrary, that neither point "stood a snowball's chance in hell" of surviving in the CJEU and there was no point in making a reference.
- I turn to Mr Silverleaf's first point, that the act of recording a fact is to be regarded as an act of creation and so does not involve the right kind of investment. The argument is that until a datum is first recorded, it does not exist to be collected into a database. Thus, he submitted by way of example, data about physical phenomena, such as a temperature or pressure at a particular time and place, only come into existence when someone measures and records them. But for the measurement they are merely transitory states of affairs. The Art. 7 right is confined to cases where pre-existing material is collected together to form a database.
- In support of his argument, Mr Silverleaf relied on [34-36] of BHB (further amplified by  of Oy Veikkaus), Football Fixtures, Horseraces and Spin-offs; The ECJ Domesticates the Database Right, Davison and Hugenholtz,  EIPR 113 and The Data Difficulty in Database Protection, Bygrave, to be published in EIPR 2013 35(1) 25-33.
- I begin with the commonsense of the position: the factual data provided by the FBA to the SIP and then recorded by the SIP (sometimes after some conversation to verify its accuracy) in FDC's database is pre-existing data. Only a metaphysicist would say a goal is not scored until the FBA tells the SIP that it has been scored. The same metaphysicist might also deny that a temperature exists unless and until it is recorded. But he would feel hot in a Turkish bath even without a thermometer. And, notwithstanding the factual assertion to the contrary in Davison and Hugenholz (see below), I am entirely confident that a scientist who takes a measurement would be astonished to be told that she was creating data. She would say she is creating a record of pre-existing fact, recording data, not creating it.
- Actually if one follows the logic through, there is never anything but creation of data when it is put in a database. For even if the maker of the database seeks to use only "pre-existing materials", all he can in fact use is his own perception of what those materials are. So always in making his database he is in a sense "creating" information, using his own mind to judge what the "old" material is to put into his database. It makes no difference whether he is trying to record it himself for the first time or trying to use what he perceives to be a pre-existing record: there is no reality, only an observer's perception of it. Always ultimately a database will be subjective in that sense.
- And if that is right, as I think it must in logic be, there can never be any protected database on Mr Silverleaf's submission: every entry in any database can only be the result of the judgment of its creator as to what is "out there," whether he measures it himself or subjectively thinks what he is entering is data recorded by someone else. The argument must therefore be rejected as absurd.
- There is another absurdity too. According to the submission there is a difference between a database made up of data consisting of pre-existing items collected by the database maker and one made up of items ascertained by the database maker himself. But this distinction would be one without any sensible difference. Take the present case for example. Suppose the communication from the FBA were recorded, the SIP listened to a slightly time-delayed version and there was no conversation verifying the information provided by the FBA. The SIP would then be working on pre-existing information. He would hear that Cazorla has scored in the 33rd minute and enter that pre-existing data into the database. According to the submission there would then be a database right. But if he works as he does by direct communication and verification with the FBA there is not. The legislators cannot have intended anything as silly as that.
- I move away from metaphysics to consider the much more practical matter of the purpose of the Directive. If it is as limited as Mr Silverleaf suggests, it has a very small ambit a mere mouse of a right at best. Not only would what is obviously really substantive data creation (such as football fixtures and lists of runners and riders) be excluded, as the Court has held, but also all those cases where people collect data by measurement or similar processes and collect that data in a database. There are understandable policy reasons for excluding the former, but not the latter.
- Indeed the policy of the Directive is that databases which cost a lot of investment and can readily be copied should be protected. The right is created to protect the investment which goes into the creation of a database. If a database produced by collecting data ascertained (not created) by the database creator is not protected, there will be no incentive to create databases of that sort. There are huge industries which consist of data collection and its provision in a database, doing precisely what Mr Silverleaf contends is excluded from protection. If they are not protected by the sui generis right the investment in them will have no protection. Take the present case. Football Live is the product of considerable investment in collecting the data within it. If it can be copied with impunity would the investment be worthwhile?
- The recitals confirm that protection for this sort of database is intended:
(7) Whereas the making of databases requires the investment of considerable human, technical and financial resources while such databases can be copied or accessed at a fraction of the cost needed to design them independently;
(8) Whereas the unauthorized extraction and/or re-utilization of the contents of a database constitute acts which can have serious economic and technical consequences;
(9) Whereas databases are a vital tool in the development of an information market within the Community; whereas this tool will also be of use in many other fields;
(10) Whereas the exponential growth, in the Community and worldwide, in the amount of information generated and processed annually in all sectors of commerce and industry calls for investment in all the Member States in advanced information processing systems;
(11) Whereas there is at present a very great imbalance in the level of investment in the database sector both as between the Member States and between the Community and the world's largest database-producing third countries;
(12) Whereas such an investment in modern information storage and processing systems will not take place within the Community unless a stable and uniform legal protection regime is introduced for the protection of the rights of makers of databases;
(13) Whereas this Directive protects collections, sometimes called 'compilations`, of works, data or other materials which are arranged, stored and accessed by means which include electronic, electromagnetic or electro-optical processes or analogous processes;
(39) Whereas, in addition to aiming to protect the copyright in the original selection or arrangement of the contents of a database, this Directive seeks to safeguard the position of makers of databases against misappropriation of the results of the financial and professional investment made in obtaining and collection [sic] the contents by protecting the whole or substantial parts of a database against certain acts by a user or competitor;
- If a database of information in an information market does not include a database of objective information ascertained by the database maker then it will not be much of a "vital tool." And it would not be worthwhile (or much less worthwhile) anyone making the investment to create such a database. Accordingly I consider it wholly improbable that such a database was not within the intended scope of protection of the sui generis right.
- Of course if the materials Mr Silverleaf relies upon clearly force one to abandon common sense then common sense must give way. I turn to examine them on that basis.
- First, [34-36] of BHB and  of Oy Veikkaus. Mr Silverleaf focuses on [34-36] but I think one must start earlier, at , which I repeat:
 Against that background [i.e., the purpose evinced in recitals 9, 10 and 12], the expression 'investment in ... the obtaining ... of the contents' of a database must
be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.
- I do not see that as in any way precluding something like measuring a temperature or recording an event. The contrast is solely between "existing independent materials" and the creation as such of independent materials. To the extent that Mr Silverleaf relies on a notion of pre-existing concreteness which may be connoted by the word "materials", that reliance must fail because "materials" is being used in the sense of "elements" which go into the database. I see no reason to read an as yet unmeasured temperature as anything other than an "existing independent element" which is sought out by the database maker when he measures it, records it and puts it in his database.
- Furthermore  evidently and explicitly approves what was said by the Advocate-General at [41-46] of her Opinion. She concluded at  that:
where the creation of data coincides with its collection and screening, the protection of the Directive kicks in.
- So even if you regard the process of information gathering for the first time as "creation" (as Mr Silverleaf contends) there is nonetheless an "obtaining" within the meaning of Art. 7(1) and in her words protection "kicks in".
- The Court, having got that far, just cannot have been saying anything to the contrary in [34-36]. Analysis shows it was not.  is concerned with "verification" not "obtaining" as its opening language makes clear. What it is saying, and all that it is saying, is that resources devoted to a verification step of elements in a database do not count as relevant investment if those elements themselves are created by the database maker, as for instance in a list of runners and riders. True it is that the second sentence uses the words "resources used in creating a database and cannot therefore be taken into account" but the meaning is clear enough the court is considering only a database containing merely data created by the database itself.
- In [35-36] the Court rejects the so-called spin off theory as itself precluding protection. It is merely saying that if there is further investment above and beyond the investment in data creation "independent of the resources used to create those materials" - there can be a database right.
-  gives an example where after creation of the data there is further substantial investment in systematic or methodical arrangement and verification of its accuracy. And to my mind  of Oy Veikkaus provides clear confirmation that this is the right way to read  of BHB. For what it is saying is that because there was no evidence of any such further investment, only investment in data creation, there is no protection: it was explicitly looking for such further investment.
- I think this is all clear. It does not support Mr Silverleaf's submission that the court is limiting protection to collection of historic already determined data.
- I turn to Davison and Hugenholtz. The key passage reads:
The distinction between creating and obtaining information
While the ECJ appears to be confident it can distinguish between "creating" and "obtaining" data, the distinction is not always so easy to make. For instance, is the derivation of data from naturally occurring phenomena an act of creation or obtaining? One example may be the recording of meteorological data such as the daily maximum temperature in a particular location. Similarly do scientists obtain the genetic sequences of living organisms or do they create them?
- Pausing there I have to say, as I have said already, that any scientist who measures this kind of data would be astonished to be told she was actually creating data. She is creating a record of data elements, not the elements themselves. The process is miles away from that of creating and determining a fixture list or list of runners and riders. I therefore do not find the article at all persuasive in supporting the theory advanced by Mr Silverleaf.
- The article goes on to discuss how data creators may, to get over the data creation objection, set about presentation and verification as a way of gaining protection. It also points out (see below) that where a database maker has unique access to the source of his data he may get a monopoly and that may cause owners of such sources to preclude access to others. But all that is by-the-by to the obtaining/creation argument at present under consideration.
- Finally I turn to Bygrave. This is an erudite but to my mind rather abstract consideration of the problem, particularly in relation to biological data. The key passage for present purposes reads:
As several commentators have pointed out, the distinction between creating and obtaining data becomes especially difficult in the context of scientific research involving the observation and analysis of natural phenomena [there is footnote identifying inter alia, Davison and Hugenholz]. When do those processes generate data? If one is to apply Floridi's view of data, the natural phenomena themselves are a type of data such that analysis of them resulting in recordings of co-ordinates, measurements, etc. may give rise to a collection of pre-existing data. Some commentators take this view, though without reference to Floridi or other information scientists. In doing so, they argue that potential resultant problem of 'informational lock-up' can be resolved by competition law or the imposition of licensing requirements.
Were the EU Court of Justice called upon to tackle the issue, my hunch is that it would probably apply an understanding of the ISO [International Organisation for Standardisation] definition of data ["a representation of facts, concepts or instructions in a formalised manner suitable for communication, interpretation or processing by human beings or by automatic means"] as this would seem to tally better with its above-cited elaboration of the Directive's basic function and the aims of the sui generis right, along with the Directive's legislative history. The Court would accordingly look for when formalised representations (typically recorded measurements) are first made of the natural phenomena and regard that process as creating rather than obtaining or collecting data [there is another footnote reference to Davison and Hugenholtz and to another writer, not cited to us].
- I simply do not agree with this or think that there is even a prospect of the Court agreeing. I do not think this Directive is concerned with deep abstract aspects of informational theory or that the Court would consider it to be so concerned. The Directive is concerned with creating a commercial right so as to encourage the creation of valuable databases. There is no realistic chance of the Court striking down the many large database protected industries of Europe on the grounds that they consist of objective information recorded for the first time by their creators.
- I turn to Mr Silverleaf's alternative point about "independent investment." Football Live contains a mixture of data. Some of it is essentially purely objective (goals, times, scorers), whilst other parts are purely subjective (e.g. the FBA's own personal assessment of the dominant player for the last ten minutes or man of the match). There is probably some intermediate part objective/part subjective matter too, e.g. the fact of a foul or a card and the FBA's assessment of how serious the incident was. For present purposes it is enough that there is a mixture of the extreme types. The FDC operation collects both types of data and enters both into the Football Live database. The process of collection of the data and its entry is one and indivisible.
- It follows from this, submits Mr Silverleaf, that there is no independent investment in the objective data alone. And, he says, it follows from that there can be no sui generis right. Only if there is independent, in the sense of separately identifiable, investment in the collection of pre-existing data elements can there be a database right.
- The submission is based on what the Court said in BHB about the resources used to create the data in the database not being relevant for giving rise to a sui generis right. Again I repeat :
 Against that background, the expression 'investment in ... the obtaining ... of the contents' of a database must
be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.
- Mr Mellor provided the short answer to this submission. The resources which go into the creation of the data are the resources which go into setting up and playing the football matches concerned over 3,000 in a year. It is these which give rise to the objective data. FDC has nothing to do with that. FDC's resources are used to collect the data thus generated.
- Now it is true that the data FDC collects also includes subjective elements. But the objective elements owe nothing to FDC resources: they are generated on the field. The fact that the Football Live database also includes subjective elements and the same resources are also used to generate these does not mean that the Football Live database consists of materials created by FDC only.
- This makes perfect sense. For if only objective data existing information were collected there could be no argument but that the database was protected. It would be absurd if it lost protection because some subjective elements were also included. The purpose of protection as set out in the last sentence of  would be lost.
- The absurdity can be tested by an example. Suppose a scholar created a database consisting of all Charles Dickens' references to law and lawyers. That would involve expenditure of significant resources and the database would qualify for protection. Now suppose the scholar added a commentary to the entries. Would he lose protection for his database? Obviously not. And equally obviously his database right would not prevent extraction from the database of any of the information he himself had created. This is because the rules as to what amounts to infringement focus on whether the infringer is making undue use of the relevant resources which went into the database. The scholar's own commentaries would not be relevant resources see below. He might well of course have copyright protection in his annotations, but that protection would be nothing to do with the database protection.
- And turning to this case, if the referee says the ball was over the line (not "back of the net" does a net have a back?) and signals a goal has been scored, it has. Any spectator who tells someone that it has been scored is not creating data. If he adds his opinion that it could be the goal of the month, that is his creation.
- The considerable investment which goes into Football Live (of the order of £600,000 per annum) clearly justifies Floyd J's decision that Football Live is a protected database. Although, somewhat to my embarrassment, I have been a lot longer-winded than him, I think he was absolutely right so to conclude.
Infringement by users
- The sui generis right entitles its owner:
to prevent extraction and/or re-utilization of the whole or a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database (Art. 7(1)).
"Extraction" is defined as:
the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form (Art. 7(2)).
There may be infringement even where the defendant extracts or re-utilises insubstantial parts of the contents of the database on a little-but-often basis:
The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted (Art.7(5)).
- FDC contends that the UK based users of the Stan James website are infringers pursuant to these provisions. There are two points to consider.
- First, it will be recalled that the punter (for one can reasonably suppose that is what the user of the Stan James website is) actually uploads all the Live Scores data on Sportradar's database into his computer. He cannot see it all at once because it is encrypted, but by applying the magnifying glass (a de-encryption key) he can see any part of that data. The defendants make a point about that. They say data is only "extracted" when it is read by the punter. Since the reality is that punters will only apply the glass to relatively few matches, no punter takes a substantial part, even of the Sportradar database. So even if the Sportradar database infringes by containing a substantial part of FDC's database, the punters do not themselves infringe.
- I am quite unable to accept this. The plain fact is that the punter's computer has all the information from Sportradar in it. That seems to me clearly the "temporary transfer of the contents" of the Sportradar database to another medium, i.e. the punter's computer. The point is hopeless. Moreover if right it would be quite subversive of the database right altogether. For no user of any database wants to see all the data in it. Users want just the elements they are interested in just as a purchaser of a dictionary never expects to consult more than a small proportion of the definitions in the dictionary. If you only count the data actually accessed as the part taken and not what is actually downloaded, there would seldom be a substantial part taken.
- I turn therefore to the more substantive point. Does the punter extract a substantial part of Football Live via Sportradar's Live Scores? That depends on what data from Football Live is taken by Live Scores: if Live Scores infringes so does the punter.
- The question breaks down into two points. For what proportion of the FDC matches does Live Scores get its data directly or indirectly from Football Live? And in respect of those matches, what difference, if any, does it make that pre-defence Live Scores took the pre-defence data, whereas after the defence it only took the post-defence data?
- The first of these points involves a question of pure fact, untouched by any question of law. The Judge concluded:
 Although, as I have said, there is no dispute that there existed a channel from PA's database through which some data flowed through Sportradar to the computer of a punter, the evidence is far from precise as to how much of the data in relation to the matches on a given day will have flowed down that channel.
 I find that in relation to televised matches the amount of data that has flowed from PA to the punter is minimal. It is true that the claimants have established one case of an error in the case of a televised SPL game. Nevertheless I accept the evidence of Sportradar's witnesses that, in the case of televised matches, the facts are collected by watching the relevant broadcast, independently of PA.
 In relation to other matches, I have to consider both the larger collection of data (goals, own goals, penalties, scorers, cards, expulsions and substitutions) which Sportradar collected before the defence, and the slimmed down collection (goals and timings) thereafter.
 I think that the larger collection of data for non-televised matches was, on balance, likely to have used sufficient data derived from the PA database to amount to a qualitatively substantial part. I reach that conclusion on the basis that the available sources other than PA for that data were limited, and that it is realistic to regard the investment involved in obtaining a body of data of that nature as substantial, despite the fact that very much more data was in fact contained in the database. The range of data is, in my judgment, sufficiently wide to require an investment of the same order as that required for the full data collection operation. It is fair to say that Sportradar did not press very hard the suggestion that this would not amount to a substantial part. That is perhaps reflected by the fact that they had ceased to use this data after these proceedings were commenced.
- Mr Silverleaf attacked the findings about the proportion of matches in respect of which Live Scores uses data extracted directly or indirectly from Football Live. He contended that it was "approximately 2%." Because this is an appeal on a question of fact, Mr Silverleaf accepted he had to show that there is no material upon which the Judge could legitimately have found a higher proportion.
- Clearly the judge thought the proportion was much higher than 2% though he made no precise finding as to what it was. He cannot be criticised for this, for it is obvious that the information as to exactly how much was taken lay within Sportradar's knowledge or means of knowledge. Of course the legal burden of proof lay on FDC but given the fact that Sportradar admitted extracting some data, I consider that the evidential burden of proof that it was only a trivial amount lay on Sportradar.
- As regards the Premier League, Sportradar discharged that burden, showing that it got its data from TV broadcasts. But it failed to do so as regards the matches for lower leagues. The "available sources other than [Football Live] were limited". So, given its admitted copying of some data, its failure to show where it got its data from, and the limited other possibilities as to where some of it could have come from, why should the court not conclude that which seems obvious, that it got its data about a lot of the lower league matches from Football Live?
- I would only add this. Sportradar were in part caught copying by the fact that some of the data in Live Scores were seeded errors (and some actual errors) in Football Live. This is the classical way of catching copyists just like omitting a real road or adding a bogus road to a city map. Once a defendant has copied such features, no one has ever suggested that the onus lay on the copyright owner to prove that the rest of the map had been copied. That would be absurd. So an analysis of the copied errors of the sort relied upon by Mr Silverleaf is obviously irrelevant to the amount of copying of correct data.
- So the only conclusion can be that there was ample material for the Judge to hold as he did that Sportradar's Live Scores data about a substantial proportion of individual matches below the Premier League was taken directly or indirectly from Football Live.
- The judge went on to conclude that there was infringement by the extraction of the pre-defence data because what was extracted amounted to a substantial part of Football Live on a qualitative basis (Mr Mellor did not rely on a quantitative basis for the obvious reason that the data extracted about each match even before defence was only a small proportion of the data about that match on Football Live). As regards the post-defence data (just goals and times) he held that it did not amount to a substantial part. The defendants challenge the former conclusion, FDC the latter.
- The legal test was not in dispute. It was explained in BHB:
" In that connection, it must be borne in mind that protection by the sui generis right covers databases whose creation required a substantial investment. Against that background, Article 7(1) of the directive prohibits extraction and/or re-utilisation not only of the whole of a database protected by the sui generis right but also of a substantial part, evaluated qualitatively or quantitatively, of its contents. According to the 42nd recital of the preamble to the directive, that provision is intended to prevent a situation in which a user 'through his acts, causes significant detriment, evaluated qualitatively or quantitatively, to the investment'. It appears from that recital that the assessment, in qualitative terms, of whether the part at issue is substantial, must, like the assessment in quantitative terms, refer to the investment in the creation of the database and the prejudice caused to that investment by the act of extracting or re-utilising that part.
 The expression substantial part, evaluated quantitatively, of the contents of a database within the meaning of Article 7(1) of the directive refers to the volume of data extracted from the database and/or re-utilised, and must be assessed in relation to the volume of the contents of the whole of that database. If a user extracts and/or re-utilises a quantitatively significant part of the contents of a database whose creation required the deployment of substantial resources, the investment in the extracted or re-utilised part is, proportionately, equally substantial.
 The expression substantial part, evaluated qualitatively, of the contents of a database refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. A quantitatively negligible part of the contents of a database may in fact represent, in terms of obtaining, verification or presentation, significant human, technical or financial investment."
- The test thus depends on the scale of the investment in obtaining verification or presentation of what was extracted. Even if only a small part is taken, it can be qualitatively a substantial part if it represents significant investment. The question is what investment has gone into the data taken?
- To answer that, one has to go back to the facts. What investment did FDC put into the data from the substantial proportion of matches in Football Live from which Sportradar extracted data? The answer is clear: a very significant investment consisting of the costs of the SIP, the FBA and the whole overall set-up. I can see no way in which the Judge's conclusion concerning the pre-defence data can be faulted.
- But what about the post-defence data? The Judge said:
 The position is different, however, when one considers only the goals and timings. Mr Mellor submitted that the same set up would be necessary to collect even that amount of data, and that therefore the investment would be exactly the same. I reject that submission. It is unsupported by any evidence adduced by the claimants. It is entirely plausible that, with modern communications, the claimants could arrange for each goal scored and its timing to be recorded at a central data centre at virtually no additional cost. There would be no need for FBAs with football experience or SIPs. There would be no need for the one-to-one running commentary which the FBAs provide. Accordingly, even if every goal included in the data extracted by a punter was derived from the claimants' database (which is not by any means established), I would hold that the data so extracted would not be sufficient to amount to a substantial part.
- I think the Judge fell into error here. Firstly I do not think it is relevant whether or not this data could be collected "at virtually no additional cost" (a matter which was not explored in the evidence at all). What matters is the investment which in fact went into collecting the data. Secondly I do not see how it could actually be done save by having someone at each ground watching and communicating in when each goal was scored. The Judge is doubtless right in saying that you would not need people with as much experience and skill as the SIPs and FBAs but if you wanted universal and reliable coverage you would still have to have reliable people at every ground and a reliable method of reporting in. Thirdly when the Judge referred to data "extracted by the punter" he overlooked the fact that the punter's computer had all the data within it albeit in encrypted form.
- Accordingly I would reverse the Judge's finding here. I am not sorry to do so. Sportradar's business model in part relies on extraction for nothing of data from Football Live (and possibly other databases too) and selling it on as part of its own wider package. It could provide a lesser package by avoiding this extraction. But then it would not be comprehensive. I see no reason why it should not pay for the comprehensive coverage which, by extraction, it is able to sell on. It puts at risk the investment made by others.
- The Judge held that Sportradar was not a joint infringer with the punters but that Stan James was. FDC appeals the former finding, Stan James the latter. As I said earlier the Sportradar appeal has become largely academic (save as to costs) because of the ECJ ruling that it is liable as a primary infringer if it targets UK punters, which it admittedly does.
(a) The case law as to joint-tortfeasorship
- The principles as to liability for joint-tortfeasorship under English law (and we are only concerned with English law on this point) are set out in some well-known cases, Unilever v Gillette  RPC 583, pp. 608-609; Sabaf v Meneghetti  EWCA Civ 976;  RPC 14 at -; Twentieth Century Fox v Newzbin  FSR 21 at   [111-112] and ; and CBS v Amstrad  AC 1013. In L'Oreal v eBay  RPC 21 at [346-382] Arnold J cites all the key passages, himself concluding that eBay, who organise an internet computerised auction system, were not joint torteasors with those who sold trademark infringing goods via the system. eBay merely provided the facility used by the pirates.
- The earlier cases are concerned with the liability of a seller of physical goods for infringements carried out by his purchaser with those goods. They establish that the seller is not a joint-tortfeasor in two circumstances:
(a) where the goods he sells are not themselves infringing but can be used by the ultimate consumer to make infringing goods. This is so even if the seller knows that many ultimate consumers will do just that. Even in such a case the choice as whether or not he will infringe is made by the consumer alone and there is no common design to infringe see the passage from the speech of Lord Templeman in CBS v Amstrad cited by Arnold J at ; and
(b) where the seller of infringing goods is abroad and is not himself responsible for the importation of the goods, as where under a c.i.f. contract the property passes abroad and the carrier is the buyer's agent not the seller. That remains so even if the overseas seller acts as the buyer's agent in concluding the contracts of freight and insurance. Only the buyer infringes in the jurisdiction, see Meneghetti. As Mr Mellor put it "control ends at the factory gate."
- The tests propounded in the cases are perhaps somewhat generalised and to that extent nebulous it is probably not possible to be more precise. Thus in CBS v Amstrad Lord Templeman put it this way:
My Lords, joint infringers are two or more persons who act in concert with one another pursuant to a common design in the infringement.
In Amstrad v BPI  FSR 159 at 206 Lawton LJ said:
mere supplying with knowledge and intent will not be enough to make the supplier himself an infringer or a joint tortfeasor with someone who is. ... the law relating both to patents and copyrights is in restraint of trade. Patentees and the owners of copyright have the rights given to them by statute and no others. Those who infringe those rights are penalised. Acts short of infringement are not.
In Unilever v Gillette  RPC 353 Mustill LJ posed the test as being whether
(a) there was a common design between [the US parent company] and [its UK subsidiary] to do acts which, if the patent is upheld, amounted to infringements, and (b) [the US parent] has acted in furtherance of that design. I use the words 'common design' because they are readily to hand, but there are other expressions in the cases, such as 'concerted action' or 'agreed on common action' which will serve just as well. The words are not to be construed as if they formed part of a statute. They all convey the same idea. This idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements.
Finally in Meneghetti Peter Gibson LJ put it this way:
The underlying concept for joint tortfeasance must be that the joint tortfeasor has been so involved in the commission of the tort as to make himself liable for the tort. Unless he has made the infringing act his own, he has not himself committed the tort. That notion seems to us what underlies all the decisions to which we were referred. If there is a common design or concerted action or otherwise a combination to secure the doing of the infringing acts, then each of the combiners has made the act his own and will be liable.
(b) Application of the principles here
- How then do these principles apply to what Sportradar and Stan James do? Now that the CJEU has made it clear that Sportradar, targeting as they do UK punters through Stan James, are potentially liable as primary infringers, I cannot see that they stand in any different position from Stan James. Both are targeting UK punters Stan James to attract and keep punters to and on their website and Sportradar for money assisting Stan James in doing that. The basis of the Judge's decision that Sportradar was not liable in effect because it is a mere foreign supplier like the defendant in Meneghetti - has gone. It is not necessary to consider whether, if the CJEU had ruled the other way, the Judge would have been correct.
- Further, because it acts in concert with Sportradar, Stan James is plainly a joint-tortfeasor with Sportradar given, as I have held, that FDC own database rights. But that is not the issue before us. What is at issue is whether Stan James is a joint-tortfeasor with the UK punters who avail themselves of the pop-up Live Scores on Stan James' website.
- What does follow from the fact that Stan James and Sportradar act together is that Stan James' pop-up Live Scores should be treated just as if it were Stan James' own link.
- So the question boils down to this: if A has a website containing infringing material which will inevitably be copied into the computer of B if he enters that website, is A a joint tortfeasor with B? I am conscious that this question is important. The answer would seem to apply equally to copyright as to database rights. If the answer is yes, then the owner of any website anywhere in the world will be a joint tortfeasor with a UK user of that website if the inevitable consequence of access to that site by the user is infringement by that user.
- I would hold the answer to be yes. The provider of such a website is causing each and every UK user who accesses his site to infringe. His very purpose in providing the website is to cause or procure acts which will amount in law to infringement by any UK user of it. The case is not one of a mere facilitator, such as eBay or Amstrad where the choice to infringe or not ultimately lay with the consumer. Here Stan James is in reality responsible for the punter's infringement.
- Mr Hobbs suggests that is not so for two reasons which I must address. First he says that it is entirely the punter's option whether or not to click on the pop-up box, so Stan James cannot be held responsible. But that is not the same sort of option as in the case of the seller on eBay or the consumer of Amstrad's copying machine. In those cases it is he who may be fairly called the user of the facility who decides whether or to infringe (to sell trade mark infringing copies or make infringing copies). Here the user of the pop-up has no choice. He is made to infringe if he uses the pop-up at all.
- Next Mr Hobbs raised a defence of innocence. Neither the punter nor Stan James knew that the whole of Sportradar's Live Scores was downloaded, encrypted, into the punter's computer. Mr Hobbs submitted that where the law has by statute created secondary liability (e.g. Art. 26 of the Community Patent Convention implemented in s.60(2) of the Patents Act 1977 or ss.22-25 of the Copyright Designs and Patents Act 1988 as amended providing for secondary liability for copyright infringement) there is a requirement of knowledge on the part of the alleged secondary infringer. So, he submitted, the common law should have the same approach; that A cannot be a joint-tortfeasor with B unless A has knowledge that a tort is being committed by B, or, at the very least, has knowledge of the facts which in law makes B a tortfeasor.
- I do not accept that. Once a party has procured an act which amounts to infringement by another he has effectively made it his own act. Here the acts of infringement by the punters do not require knowledge. I see no reason why Stan James which causes those acts to happen by providing a link which makes infringement inevitable should have a defence not available to those whose acts it procures. This is not a case of secondary liability but one of primary liability along with another.
- I add that Mr Hobbs' invocation of innocence on the part of Stan James in any event raises no chord of sympathy with me. Stan James knew that it was getting Live Scores from Sportradar. It did so to enhance the attractiveness of its own website. If, as it did, it chose not to inquire into the details of where Sportradar got its data from and how it was sent to the users, that was a matter for it. But it was a kind of Nelsonian blindness for there were obvious risks. I do not know whether it can look to Sportradar to indemnify it. But again it surely could have expressly sought such indemnification in its contract with Sportradar. If it chose not to do so it was at least taking a risk if all was not well with what Sportradar was providing.
Abus de Droit and Art. 10 of the European Convention on Human Rights
- The Judge dismissed the defendants' arguments on these. (Actually, though I may be wrong, Sportradar only relied on Art.10.) He was quite right to do so, for these points are hopeless. The plain fact is that Sportradar is extracting a substantial part of the Football Live data without paying and Stan James are paying not FDC but Sportradar for the data collected by FDC.
- I would add just a couple of points. Firstly FDC is not monopolising the data it is willing to provide access to Football Live to those who pay and there is no suggestion that extortionate fees are being demanded (which might, I suppose, be a matter for competition law).
- Secondly in reality others could collect the data for themselves if they were willing to go to the expense and trouble as the Judge found:
. This case [i.e. that based on Art.10] is based in part on the proposition that no alternative source for the data in question is available. That is contrary to my factual findings in the present case. Whilst the claimants no doubt take steps to impose restrictions on the in-game reporting of match data, the evidence suggests that these steps are less than effective. Moreover, whilst there are games where the claimants are the only source of data, that is not because they are successfully enforcing restrictions on reporting: it is because there is relatively little interest in the game. In these circumstances, the claimants are not, by their assertion of database right "preventing reportage or dissemination of any meaningful information relating to incidents on the pitch" as Stan James assert in their opening written submissions."
- In short, neither the abus de droit doctrine nor Art. 10 begin to justify the commercial piracy at issue here.
- They are that:
(a) There is a sui generis database right in FDC's Football Live database;
(b) Both before and after defence UK punters extract a substantial part of that database when they use the pop-up facility on the Stan James website;
(c) Both Stan James and Sportradar are joint tortfeasors with the UK punters; and
(d) There are no defences of abus de droit or infringement of Article 10 of the ECHR.
- It follows that FDC's appeals succeed on the joint liability of Sportradar and on infringement by users since the date of Sportradar's Defence, Stan James' appeal fails and Sportradar's appeal also fails. FDC had a separate ground of appeal on the order for costs as against Sportradar, but that does not need separate consideration since the substantive appeal as against Sportradar will be allowed.
Lord Justice Lewison
- I agree.
Lord Justice Lloyd
- I also agree.
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