Football Dataco Ltd and Others v Sportradar GmbH and Sportradar AG.
Date: 2012-10-18
20. As regards part (a) of the question, the Court has previously held that, having regard to the terms used in Article 7(2)(b) of Directive 96/9 to define the concept of ‘re-utilisation’, and to the objective of the sui generis  right established by the European Union legislature, that concept must, in the general context of Article 7, be understood broadly, as extending to any act, not authorised by the maker of the database protected by the sui generis  right, of distribution to the public of the whole or a part of the contents of the database (see Case C-203/02 The British Horseracing Board and Others  [2004] ECR I-10415, paragraphs 45, 46, 51 and 67). The nature and form of the process used are of no relevance in this respect.
25. The objective of Directive 96/9 is, by approximating national laws, to remove the differences which existed between them in relation to the legal protection of databases, and which adversely affected the functioning of the internal market, the free movement of goods and services within the European Union and the development of an information market within the European Union (see Case C-604/10 Football Dataco and Others  [2012] ECR, paragraph 48).
27. In that context, the protection by the sui generis  right provided for in the legislation of a Member State is limited in principle to the territory of that Member State, so that the person enjoying that protection can rely on it only against unauthorised acts of re-utilisation which take place in that territory (see, by analogy, Case C-523/10 Wintersteiger  [2012] ECR, paragraph 25).
33. In this respect, the localisation of an act of ‘re-utilisation’ within the meaning of Article 7 of Directive 96/9 must, like the definition of that concept, correspond to independent criteria of European Union law (see, by analogy, Case C-5/11 Donner  [2012] ECR, paragraph 25).
34. In the case of re-utilisation carried out, as in the main proceedings, by means of a web server, it must be observed, as the Advocate General does in points 58 and 59 of his Opinion, that this is characterised by a series of successive operations, ranging at least from the placing online of the data concerned on that website for it to be consulted by the public to the transmission of that data to the interested members of the public, which may take place in the territory of different Member States (see, by analogy, Donner , paragraph 26).
35. Account must also be taken, however, of the fact that such a method of making available to the public is to be distinguished, in principle, from traditional modes of distribution by the ubiquitous nature of the content of a website, which can be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the operator of the website in regard to its consultation beyond that person’s Member State of establishment and outside of that person’s control (see, to that effect, Joined Cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof  [2010] ECR I-12527, paragraph 68, and Joined Cases C-509/09 and C-161/10 eDate Advertising and Others [2011] ECR I-10269, paragraph 45).
36. Consequently, the mere fact that the website containing the data in question is accessible in a particular national territory is not a sufficient basis for concluding that the operator of the website is performing an act of re-utilisation caught by the national law applicable in that territory concerning protection by the sui generis  right (see, by analogy, Pammer and Hotel Alpenhof , paragraph 69, and Case C-324/09 L’Oréal and Others  [2011] ECR I-6011, paragraph 64).
37. If the mere fact of being accessible were sufficient for it to be concluded that there was an act of re-utilisation, websites and data which, although obviously targeted at persons outside the territory of the Member State concerned, were nevertheless technically accessible in that State would wrongly be subject to the application of the relevant law of that State (see, by analogy, L’Oréal and Others , paragraph 64).
39. The localisation of an act of re-utilisation in the territory of the Member State to which the data in question is sent depends on there being evidence from which it may be concluded that the act discloses an intention on the part of its performer to target persons in that territory (see, by analogy, Pammer and Hotel Alpenhof , paragraphs 75, 76, 80 and 92; L’Oréal and Others , paragraph 65; and Donner , paragraphs 27 to 29).
41. The fact that Sportradar granted, by contract, the right of access to its server to companies offering betting services to that public may also be evidence of its intention to target them, if – which will be for the referring court to ascertain – Sportradar was aware, or must have been aware, of that specific destination (see, by analogy, Pammer and Hotel Alpenhof , paragraph 89, and Donner , paragraphs 27 and 28). It could be relevant in this respect if it were the case that the remuneration fixed by Sportradar as consideration for the grant of that right of access took account of the extent of the activities of those companies in the United Kingdom market and the prospects of its website betradar.com subsequently being consulted by internet users in the United Kingdom.
42. Finally, the circumstance that the data placed online by Sportradar is accessible to the United Kingdom internet users who are customers of those companies in their own language, which is not the same as those commonly used in the Member States from which Sportradar pursues its activities, might, if that were the case, be supporting evidence for the existence of an approach targeting in particular the public in the United Kingdom (see, by analogy, Pammer and Hotel Alpenhof , paragraph 84, and Donner , paragraph 29).
45. Besides the fact that, as Football Dataco and Others observe, it is sometimes difficult to localise such a server with certainty (see Wintersteiger , paragraph 36), such an interpretation would mean that an operator who, without the consent of the maker of the database protected by the sui generis  right under the law of a particular Member State, proceeds to re-utilise online the content of that database, targeting the public in that Member State, would escape the application of that national law solely because his server is located outside the territory of that State. That would have an impact on the effectiveness of the protection under the national law concerned conferred on the database by that law (see, by analogy, L’Oréal and Others , paragraph 62).
46. Moreover, as Football Dataco and Others submit, the objective of protection of databases by the sui generis  right pursued by Directive 96/9 would, in general, be compromised if acts of re-utilisation aimed at the public in all or part of the territory of the European Union were outside the scope of that directive and the national legislation transposing it, merely because the server of the website used by the person doing that act was located in a non-member country (see, by analogy, L’Oréal and Others , paragraph 63).