English High Court Rules that “Making Available” Occurs at the Server

On November 17 2010, the English High Court ruled in Football Dataco Limited, et al  v Sportradar GmbH et al that the act of making material available to the public by online transmission occurs where the transmission takes place, and not where it is received, for the purposes of copyright.

 

Plaintiffs alleged copyright infringement of their live streams of data (such as goals scored, goalscorers, penalties, yellow and red cards and substitutions) for soccer matches in a package called “Football Live.”    The defendants were in the business of assembling similar data from public sources. The defendants’ data was stored on web servers in Germany and Austria but could be accessed via links from other locations, including the UK.

 

Defendants argued that there was no jurisdiction for the English Court because no acts of infringement occurred in the UK.  The Court held that Sportradar had not done any act of reproduction (in respect of copyright) or extraction (in respect of database rights) in the UK.

 

Database rights are governed by Article 7(2)(b) of the Database Directive:  “Any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies by renting, by on-line or other forms of transmission.”  [emphasis added]  The court stated that the question of where the act of “making available” occurred under this Directive was related to where “making available” occurred for the purpose of s.20 Copyright Designs and Patents Act 1988.  The court analogized to the precedent of where a “broadcast” occurred under the Directive on Satellite Broadcasting and Cable Re-transmission for broadcasts originating within the EU; under that directive, the act of broadcast occurs where the signals are introduced under the control of the person making the broadcast into an uninterrupted chain of communication (which is referred to as “emission theory”).

 

The court stated, “[T]he act of making available to the public by online transmission is committed …only where the transmission takes place. 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.”

 

This decision tangentially effects the interpretation of copyleft obligations of open source licenses.  The effect turns on the extent to which copyleft obligations are triggered by “making available” software as opposed to “distribution” of software.  It has long been a source of controversy in open source licensing whether “distribution” in a license like GPLv2 includes “making available” — the former being primarily a US legal concept and the latter common in Europe and the UK.  There is not settled law on whether SAAS use of software constitutes“making available” — though it would usually not constitute distribution in the US.  Those who make code available, but do not distribute it (such as via a SAAS product) have historically had some concerns over whether they could inadvertently trip copyleft obligations if code were accessed in Europe and the UK.  Now, at least in the UK, there seems to be some comfort on the issue.