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Copyright in databases - pools panel prediction: away win

30 March 2012

The question of whether copyright subsists in databases such as sporting fixture lists is an important one. The licensing revenue of such fixture lists, and in particular the fixture lists of the English and Scottish leagues licensed by Football Dataco Limited, is substantial. It is also an important question because it has already been decided that database right does not subsist in such lists (by virtue of the Fixtures Marketing decisions of the Court of Justice of the European Union [2004] ECR1-10365, [2004] ECR1-10549 and [2004] ECR1-10497). So, to what extent are such databases protected?

This question has most recently been explored by the Court of Justice in Football Dataco Limited and others v Yahoo! UK Limited and others (Case C-604/10).

The relevant rights

The Database Directive (96/9/EC) provides for copyright protection in databases by virtue of Article 3. The scope of copyright protection extends to "databases which, by reason of the selection or arrangement of their contents, constitute the authors own intellectual creation".

Article 7 of the Directive provides the sui generis right to protect databases which involve a "substantial investment in either the obtaining, verification or presentation of the contents".

In this case, Dataco also claimed that the football fixture lists attracted copyright which, Dataco argued, can subsist in a literary work even where there is no protection afforded by Articles 3 or 7 of the Directive.

The Defendants

Yahoo!, Brittens Pools, Stan James and Enetpulse are all businesses which were alleged to reproduce the football fixture lists without a licence and hence Dataco sued each for infringement of its rights in the lists. The Defendants disputed that copyright or database right subsisted, and so argued that there could be no protection and therefore no infringement.

The cases were joined on a preliminary issue, appropriately named "the Fixture List Subsistence issue", and made their way through the High Court, Court of Appeal and on to the Court of Justice by virtue of questions referred to it by the Court of Appeal.

Interestingly, Dataco also sued Smoot Enterprises Limited which was alleged to reproduce the fixture lists on its website. Smoot did not defend the proceedings, and Dataco was able to obtain a default judgment against Smoot in April 2011, in circumstances where the Master granting the judgment was aware of the Yahoo case and that relevant questions on the subsistence of copyright had been referred in that case to the Court of Justice.

"Creating" the fixture list

The starting point for the courts has been to understand how the fixture lists are compiled. The High Court heard evidence from the creators of the fixture lists and held that there is no doubt that compiling the football fixture lists is a complex and creative process.

For example the Premier League fixtures total 380, and the organisation of such fixtures requires compliance with golden rules contained in the English Leagues Fixture Compilation Rules.

Four of these golden rules are that: no club shall have three consecutive home or away fixtures; in any five consecutive matches no club shall have four home matches or four away matches; each club shall have played a roughly equal number of home and away matches at any given time during the season and; all clubs shall have as near as possible an equal number of home and away mid week matches.

The compilation of the fixture list forms four principal processes: firstly an outline fixture list is produced; secondly the production and dissemination of questionnaires to the clubs, so that they can make specific requests in relation to certain fixtures; thirdly a "sequencing and pairing" process, which through a mixture of art and science, culminates in a draft fixture list and; finally a complete review of the list with the football leagues, police representatives and a working party to iron out problematic fixtures and to finalise the list.

The High Court concluded that this process involves "very significant labour and skill in satisfying the multitude of often competing requirements of those involved" and also, importantly, that it requires judgment and discretion such that two attempts at compilation could result in a different fixture list.

However, given that the copyright in a database protects the "selection and arrangement" of its contents, the question facing the courts was whether the activities carried out in compiling the database were "selection and arrangement" activities or data "creation" activities.

The Findings of the High Court

The High Court held that these activities did indeed involve the "selection and arrangement" of the contents of the database and so copyright did subsist in the fixture lists.

It further held that database right by virtue of Article 7 of the Directive did not subsist, and that this point was acte clair in light of the Fixture Marketing List decisions of the Court of Justice.

Finally it decided that no copyright other than copyright in a database (by virtue of Article 3 of the Directive) subsisted in the fixture lists.

The Questions referred

The matter went on appeal, and the Court of Appeal referred the following questions to the Court of Justice, for a preliminary ruling:

In Article 3(1) of Directive 96/9/EC on the legal protection of databases what is meant by "databases which, by reason of the selection or arrangement of their contents, constitute the authors own intellectual creation" and in particular:

a) should the intellectual effort and skill of creating data be excluded;

b) does "selection or arrangement" include adding important significance to a pre-existing item of data (as in fixing the date of a football match); and

c) does "authors own intellectual creation" require more than significant labour and skill from the author, if so what?

  1. Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

The Court of Justice decision (1 March 2012)

Following the Opinion of Advocate General Mengozzi in December 2011, the Court of Justice effectively answered the questions in the following way:

  1. Article 3(1) of Directive 96/9/EC protects the selection or arrangement of the contents of a database provided that such selection or arrangement amounts to an original expression of the creative freedom of the author;

a) the intellectual effort and skill of creating data is irrelevant to that question, precisely because it is a "creation" process, not a "selection or arrangement" process;

b) adding important significance to a pre-existing item of data (as in fixing the date of a football match) is equally irrelevant; and

c) significant labour and skill from the author will only justify protection if it is also an expression of originality in the selection or arrangement.

  1. The Directive precludes national rights in the nature of copyright in databases other than those provided for by the Directive

What next?

The case will now come back to the English courts to decide whether copyright does subsist in the fixture lists. However, given the decision of the Court of Justice and the Opinion of the Advocate General, it now appears to be very difficult for the English courts to make a finding other than against Dataco. This would undoubtedly have a negative impact on the licensing revenue streams which sporting fixture lists currently attract.

There is scope for copyright protection in the way in which the football fixture lists are presented (for example by reference to the particular colour schemes or graphics used), and this was contemplated by the Advocate General. However, that may well be a very narrow ambit of protection, and scant consolation for Dataco.

The case is of interest to a far wider audience than the creators of sporting fixtures: any entity which creates databases will look at this decision in light of the Fixture Marketing Lists decisions and wonder now what intellectual property rights subsist in the results of their efforts. There is certainly scope for the individual entries in a database to be protected by copyright (for example, songs in a compilation or poems in an anthology), and for database right also to subsist provided they fall within Article 7 of the Directive. However, the scope for the protection of the database as a whole looks very narrow at this point.

This article was first published in Intellectual Property Magazine

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Mark Daniels

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