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ECJ asked to rule on crucial internet publishing jurisdiction issue

Sports data churner says foreign companies are stealing its stats

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The Court of Appeal has asked the European Court of Justice (ECJ) to decide whether online publishing takes place where information is hosted or where it is read.

The High Court had previously said that a company is responsible for "making available" material where a server is based rather than where the reader accesses it, but the Court of Appeal has asked the ECJ to clarify the law.

The case centres on a dispute about the use of football data, such as the times of goals and the scorers of goals, which is published online as matches are in progress. This information is used by gambling companies, among others.

Football DataCo manages the data interests of the English and Scottish football leagues and accused Swiss company Sportradar and its German subsidiary of copying its statistics. It sued the companies in April 2010 and Sportradar, which denies the allegation, filed a new suit in Germany in July.

The Court of Appeal said that the UK courts have the right to hear the case over the German court because the UK case was filed first and that suit was not faulty in the way claimed by Sportradar.

Sportradar claimed, though, that the case should be heard on the basis that the disputed live match information was published in Austria and Holland, where its servers are based.

Football Dataco and the leagues argued that a transmission involves the sending and receipt of information, so that the receiving of it in the UK meant that any infringement of its database rights happened, at least in part, in the UK.

The High Court had used laws covering satellite television to determine that Sportradar was right, that it is the place where the information is sent from that is the place where any infringement occurs.

"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 Justice Floyd in that ruling.

"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 of Appeal, though, said that "it was not appropriate for us to form our own view about this very important and difficult question", according to its ruling.

It has asked the ECJ to rule on what the law means when a company uploads material which is protected by the Database Directive from country A and that information is seen in country B. It has asked it would any infringement exist in country A, country B, or in both countries. See the ruling here.

Copyright © 2011, OUT-LAW.com

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

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