Online database infringement occurs both where sent and received, says Advocate General

The reference was based on the English claim brought by Football Dataco et alia against sports data supplier Sportradar, with respect to the use of data collected live during English and Scottish football matches. Sportradar argued that the infringing act of "re-utilisation" of the claimants' database could only take place in the EU Member States in which its servers were situated. The EU Database Directive 96/9/EC defines "re-utilisation" as "any form of making available to the public" (cf. Article 7.2(b)). Against this background, the question was whether the relevant data was made available in Austria (the place of "emission", where the servers were), in the UK (the place of "reception", where the internet users targeted by the website were), or both.  

 

The Advocate General observed that the act of sending the data by Sportradar is one of the necessary parts of the act of making available to the public and must therefore be regarded as being in the nature of ‘re-utilisation’; “the term ‘re-utilisation’ would include the collection of acts which, in this case, starting with the ‘sending’ of data from Sportradar’s server and ending with the acts performed by the betting companies, culminates in the customers of those companies having access to the data sent" (cf. para. 58 of the Opinion). Furthermore: "In the context of the internet, the categories of ‘emission’ and ‘reception’ become highly relative as criteria for determining the ‘location’ of the points between which there is an act of communication. Categories based on concepts, such as time and space, the meaning of which becomes highly ambiguous in the world of virtual reality, are rendered ineffective by the networked configuration of a global communication medium" (cf. para. 55 of the Opinion). The Advocate General also rejected as "highly questionable" the “usefulness of employing conceptual constructions formulated in the context of broadcasting” (the "emissions theory") to online infringement (cf. para. 50 of the Opinion).