In Football Dataco Limited v Britten Pools [2010] EWHC 841 (Ch), the High Court has given an interesting ruling on the intellectual property rights subsisting in the English and Scottish football league fixture lists, finding that such lists, while not capable of protection by database right, do enjoy protection as copyright works.
Background
The defendants were football pools and betting companies and also Yahoo!, all of which used the fixture lists without a licence. This judgment was the trial of a preliminary issue and did not consider possible defences, which may be the subject of a further hearing. It is understood that Yahoo, at least, is running defences relating to fair dealing and public interest.
Under Directive 96/9/EC, a database is defined as ‘a collection of independent works, data or other materials arranged in a systematic way and individually accessible by electronic or other means.’ The Directive provides two forms of intellectual property protection for databases: (i) copyright (incorporated into the Copyright, Designs and Patents Act 1988, s 3) and (ii) the ‘sui generis’ database right.
For a database to qualify for copyright protection it must ‘by reason of the selection or arrangement of the contents of the database’ constitute the author’s own intellectual creation. To date there has been little or no case law on the meaning of this requirement. Database right applies only if there has been a substantial investment in obtaining, verifying or presenting the contents of the database, the ECJ having made clear in previous cases that these activities must be distinguished from the creation of the data itself, an activity which does not attract protection.
The claimants argued that (i) database right subsisted in the fixture lists; (ii) copyright subsisted in the fixture lists as databases; and/or (iii) copyright subsisted in the fixture lists as tables or compilations or other literary works (not databases) under the CDPA, s 3.
Decision
A large part of the judgment is devoted to explaining in great detail the process by which the fixtures lists are compiled, which is highly complex and involves the application of multiple rules and practical considerations. This detailed explanation was no doubt given to support the Court’s findings that the process involved ‘very significant labour’ but that the work itself was not mere ‘sweat of the brow’. The Court found that the process was not wholly computerised as the solution depended also on the skill and judgement of the individuals involved. The process was not one where everyone would come up with the same answer.
1. Database Right
The Court referred to the ECJ’s previous rulings and in particular, to British Horseracing Board Ltd v William Hill Organisation Ltd, Case C-203/02. In that case, the ECJ had found that the protection of database right was limited to the investment in obtaining, verifying, or presentation and not in the creation of the contents in the first place. On the same date judgment was given in four further cases, which involved football fixture lists, the Fixtures Marketing cases, being Case C-46/02 and others. The ECJ found that neither the obtaining, verifying nor the presentation of the contents of a football fixture list involved a substantial investment (over and above the creation of the data), concluding that there was no database right to be protected.
After considering the relevant authorities and the facts of this case, the High Court here concluded that the ECJ decisions applied: database right could not subsist in the fixture lists.
2. Database Copyright
Reference was made to the case of Football League Limited v Littlewoods Pools [1959] 1 Ch 637, where it had been found that football fixture lists were protected by copyright as compilations under the Copyright Act 1956. Subsequently, disparities in laws across Europe relating to the extent of protection given to compilations resulted in Directive 96/9/EC, which had then amended the way in which copyright could protect databases. The bar had been raised by the need to show the author’s ‘own intellectual creation’ by reason of selection and arrangement.
The Court considered this requirement in some detail, in particular whether ‘selection’ and ‘arrangement’ excluded ‘creation’ of data and, if so, whether the reasoning of the ECJ concerning creation of data in database right cases could be applied by analogy. The Court expressed caution about applying principles concerning the relatively new database right to the field of copyright, and vice versa. It differentiated between database right and copyright in databases stating that: ‘the purpose of copyright is to provide encouragement for creative endeavour, and differs in that respect from the sui generis right which is designed to encourage investment in particular types of data gathering’. The Court concluded that selection or arrangement under the CDPA was not limited to selection or arrangement performed after data is created (as the defendants had tried to argue), commenting that the process of selection and arrangement of contents can, and often does, start before all of the data is created.
Further, the Court found, it is necessary to focus on creativity, given the wording in the CDPA concerning ‘intellectual creation’. The author must exercise ‘judgment, taste or discretion (good, bad or indifferent)’. Mere ‘sweat of the brow’, such as compiling a list of all Acts of Parliament, will be insufficient. The Court referred to the ECJ’s recent judgment in Infopaq International A/S v Danske Dagblades Forening, Case C-5/08, in which the ECJ had considered the concept of author’s intellectual creation to be helpful in deciding that extracts from newspaper articles of only 11 words constituted a copyright infringement.
The Hon Mr Justice Floyd held that to determine if copyright in a database subsists, the Court must:
(i) identify the data which is collected and arranged in the database;
(ii) analyse the work which goes into the creation of the database by collecting and arranging the data so identified, to isolate that work which is properly regarded as selection and arrangement;
(iii) ask whether the work of selection and arrangement was the author’s own intellectual creation and in particular whether it involved the author’s judgement, taste or discretion;
(iv) consider whether the work is quantitatively sufficient to attract copyright protection.
Each of the above criteria was considered and the Court found that (i) the data included at least all of the dates for matches in general; the matches to be played and the dates of specific matches; (ii) selection and arrangement occurred in choosing the dates on which the fixtures were played and the identity of the teams to play in each match on those dates; (iii) judgement and discretion had to used at numerous stages in the process including in the allocation of matches to dates; and (iv) the work carried out was quantitatively sufficient to attract copyright protection. The Court made reference to the relevant work being made more complex by the fact that no two fixtures could be freely changed without affecting others. The fixture lists as databases were therefore protected by copyright.
3. Copyright as a Literary Work other than a Database
The claimants further argued that the fixture lists qualified for copyright protection under the CDPA as literary works, because the CDPA expressly includes protection for a table or a compilation (other than databases). The Court rejected this argument by saying that the only way in which copyright could subsist in football fixtures lists would be by virtue of the collection and arrangement of the data contained in them, ie in a database. It therefore found, without any further elaboration, that copyright could not subsist in a different form.
Comment
After the ECJ’s decisions in British Horseracing Board and Fixtures Marketing, database right holders were deeply disappointed. However, the High Court has now found a way to protect the rights in football fixtures without detracting from the ECJ’s rulings. This decision will be welcomed by other database right holders, particularly other sporting associations, as it is more likely to mean that third-party users will need licences to exploit the information. However, not all databases will qualify for this protection, depending upon the facts and circumstances surrounding their creation which will need to examined in each case. It will be interesting to see if this case is appealed and perhaps a reference made to the ECJ.
Susan Barty is a Partner within the Commercial Department at CMS Cameron McKenna LLP. Lucy Kilshaw is a Senior Associate in the Technology and Litigation Group there.
