In Football Dataco v Sportradar, the CJEU refuses to locate online re-utilisation automatically at the server. Where data is sent on request to users’ computers in a Member State and the service demonstrably targets that public, the act may also take place there.
Legal status of this article: 23 October 2012. This article discusses the CJEU judgment of 18 October 2012 in Case C-173/11 concerning Directive 96/9/EC.
Sending data to the user is re-utilisation
Sportradar transmitted through a web server data allegedly taken from a database protected by the sui generis right. Users requested the data so that it would be stored in their computer memory and displayed on their screens.
The CJEU classifies that sending as re-utilisation under Article 7 of the Database Directive. The concept broadly covers any unauthorised act of making all or part of protected database contents available to the public; the technical form is not decisive.
The web server’s location is not conclusive
Online supply consists of successive operations: data is placed on a server, requested by users and transmitted to their devices. Those steps may occur in several states.
Re-utilisation cannot therefore always be located exclusively where the server stands. Otherwise a provider could evade territorial database protection in a target state merely by hosting the server abroad.
A demonstrable intention to target the public matters
Re-utilisation takes place at least in the user’s state where evidence shows that the provider intended to target members of the public there. The national court must assess that intention from the circumstances.
In practice, indicators may include addressed customer groups, local contracting partners, language, market-specific content, advertising, distribution structure and actual use. Mere worldwide accessibility does not by itself establish target-market intent.
Territorial protection connects law, forum and evidence
The sui generis right is not a fully unitary EU right but is protected territorially through national implementation. The location of the act therefore affects the territory for which protection is claimed.
It may also affect tort jurisdiction under the then Brussels I Regulation and applicable law under Article 8(1) Rome II. Businesses should preserve server, transmission, customer and target-market evidence as one record.
Practical checklist for cross-border data services
- Document database provenance, protection basis and substantial investment.
- Map data flows from source systems through servers and partners to end devices.
- Identify target markets through customers, language, advertising, contracts and use.
- Review licences for extraction, re-utilisation, interfaces and sublicensing.
- Preserve server logs, requests, agreements and regional usage data as evidence.
Related insights
- CJEU C-604/10 Football Dataco: copyright in database structure
- CJEU Wintersteiger: jurisdiction for cross-border online advertising
Official source
This article provides a general overview and does not replace assessment of the database, investment, data source, transmission, targeting, protected territories and procedural connecting factors.
Review database rights, data flows and cross-border claim strategy