In our last edition of SnIPpets, we reported on the Court of Justice of the European Union ("CJEU") decision in Football Dataco v Sportsradar – C173/11. This confirmed that sui generis database rights under Directive 96/9/EC ("Database Rights") might be infringed by operations uploading data onto servers located outside of the jurisdiction, if there is an intention to target the public within the jurisdiction and the database contents are accessed by users there.
The CJEU specifically stated that, where a party uploads data from a protected database onto a web server located in one Member State A and sends that data to a user's computer located in another Member State B, there is an infringing act of "re-utilisation". That act takes place, at least in Member State B, where there is evidence that the act discloses an intention to target members of the public in Member State B.
SMI Group Ltd v. Levy and others [2012] EWHC 3078 (Ch), 9 October 2012.
The English Court recently considered jurisdiction in another dispute involving an alleged infringement of a Database Right. The Claimant company, SMI, arranged worldwide conferences on defence and security issues and operated a password-protected database containing client contact details from its server based in Manchester. SMI claimed that two of its ex-employees had remotely extracted commercially valuable and confidential information from its server and database and used it "extensively" to arrange a competing conference in Singapore at the same time as one organised by SMI.
The defendants claimed that the English Courts did not have
jurisdiction to hear the dispute because there wasn't a
sufficient connection with the UK, there being no infringement
taking place here. SMI claimed that the English Courts should hear
the case because the harmful event was occurring in the UK.
Decision
Ms L Anderson QC sitting as a Deputy Judge of the High Court
thought the English Court could take jurisdiction of the dispute on
the basis that an infringing "extraction" or
"re-utilisation" of the database contents might have
taken place in the UK.
The decision was given shortly before the CJEU gave its judgment
in the Football Dataco case. However, the judge specifically noted
the Advocate General's earlier opinion that a database
infringement might occur in all places where an act in the chain of
re-utilisation occurs. Accordingly, this specifically envisages an
infringement in more than one place. In the current case, it was
arguable that there was an infringing 'extraction' or
'reutilisation' in England. This was because the server was
in the UK and the information was taken from the server in the UK
even though the defendants were in Singapore at the time and the
information was used there. In line with the Advocate General's
opinion, there was also a possibility that the database
infringement was occurring elsewhere in the chain of re-utilisation
or extraction.
Comment
The facts of SMI are ultimately the reverse of Football Dataco with the server being located in the UK and the information apparently being sent elsewhere. The CJEU specifically noted that each case needs to be determined on its facts. As such, it will be interesting to see how the English Court will apply the CJEU Football Dataco ruling when the substantive case is decided. In particular, this will be an opportunity for the Court to interpret the wording 'at least' and whether there can be an infringing extraction or re-utilisation where the server is located, as well as where the information is targeted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
