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Content 'made available' in jurisdiction where server is located

It's not about where it's read, says High Court

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A company is responsible for 'making available' internet-hosted material in the country where its host server is based, not in the country where the material is read or used, the High Court has said.

The Court ruled that the law should be applied to material hosted on the internet in the same way that it applies to satellite television, meaning that the jurisdiction covering infringing material is that of the country from where the material was broadcast.

The Scottish and English football leagues and Football Dataco claimed that Sportradar of Switzerland and its German subsidiary infringed their copyrights and database rights when it published live football data on the internet for use by betting companies.

Sportradar said that the English courts did not have jurisdiction to hear a case based on the database rights question because it had not 'made available' any content in the UK.

The Court agreed, saying that the making available takes place where the server is, even if the use of material takes place somewhere else.

"I have come to the conclusion that the better view is that the act of making available to the public by online transmission is committed and committed only where the transmission takes place," said Mr Justice Floyd. "It is true that the placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception. I consider that the better construction of the provisions is that the act only occurs in the state of transmission."

The Court based its reasoning in part on laws that cover similar ground in the satellite broadcasting industry.

"The debate in relation to both these provisions is similar to that which occurred in relation to 'broadcasting'," said Mr Justice Floyd. "That debate has now been resolved, so far as the European Union and satellite broadcasts are concerned, by the Directive on Satellite Broadcasting and Cable Re-transmission."

"By those provisions the place where the act of broadcast occurs is where the signals are introduced under the control of the person making the broadcast into an uninterrupted chain of communication. This is known as the 'emission theory'," said Mr Justice Floyd.

The judgment, a preliminary ruling in a case which will continue to a full trial, clarifies the liabilities of online publishers and restricts those liabilities in some key respects the the country from which they publish.

The High Court ruled on what parts of Football Dataco and the leagues' case could proceed to a trial. It said that they had dropped an earlier allegation that there was direct copyright infringement by Sportradar in the UK, and that because the people in the UK who did access material were not party to the case, that the next stage of the case should not consider direct copyright infringement.

The ruling said, though, that Sportradar did have a case to answer on accusations that it authorised copyright infringement, that it had joint liability for copyright infringement and joint liability for database infringement.

See: The ruling

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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