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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Football Dataco Ltd & Ors v Stan James Plc & Ors [2013] EWCA Civ 27 (06 February 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/27.html Cite as: [2013] 2 EGLR 198, [2013] EWCA Civ 27, [2013] Bus LR 837, [2013] WLR(D) 48 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY
MR JUSTICE FLOYD
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWISON
and
SIR ROBIN JACOB
____________________
FOOTBALL DATACO LTD AND OTHERS |
Claimants Appellants in appeals 1364 and 1366 |
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- and - |
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STAN JAMES plc AND OTHERS |
Defendants Appellants in appeal 1349 |
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SPORTRADAR GmbH AND ANOTHER |
Defendants Appellants in appeal 1352 |
____________________
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)
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
____________________
Crown Copyright ©
Sir Robin Jacob:
Who the parties are and what they do
(a) FDC
(b) Sportradar
[37] 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.
[38] Where no live broadcast is available, operators seek a reliable, fast live internet stream. These are rarely available.
[39] 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.
[40] 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.
[41] 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.
[42] 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.
[43] 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.
(c) Stan James
The Judge's Findings
(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.
Subsistence of sui generis database right
(a) The legislation
Art. 1.2
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.
Art. 7
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?
(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;
"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.
[19] 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'.
[20] 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.
[21] For instance, according to Article 1(1) of the directive, it concerns the legal protection of databases 'in any form'.
[22] 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.
[23] 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.
[24] 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.
[25] 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.
[26] 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.
[27] 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.
[28] 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.
[29] 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.
[30] 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.
[31] 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.
[32] 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.
[33] 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.
[34] 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.
[35] 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.
[36] 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.
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.
(c) Does Football Live qualify for protection under Art.7?
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
[28] 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.
[29] 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.
[30] 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.
[31] 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.
[32] 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.
[33] 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.
[34] 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.
[35] 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.
[36] 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.
[37] 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.
[38] 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.
[39] 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.
[40] 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.
[41] 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.
[46] 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.
(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;
[31] 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.
where the creation of data coincides with its collection and screening, the protection of the Directive kicks in.
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?
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.
And:
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].
[31] 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.
Infringement by users
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)).
[72] 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.
[73] 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.
[74] 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.
[75] 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.
"[69] 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.
[70] 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.
[71] 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."
[76] 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.
Joint Tortfeasorship
(a) The case law as to joint-tortfeasorship
(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 [348]; 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."
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 [1986] 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 [1989] 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
Abus de Droit and Art. 10 of the European Convention on Human Rights
[88] . 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."
Conclusions
(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.
Lord Justice Lewison
Lord Justice Lloyd