In Football Dataco and Others  EUECJ C-604/10, the organisers of the English and Scottish football leagues and Football Dataco handed a red card to Yahoo! UK, Enetpulse (a provider of sports information) and Stan James (a bookmaker) for their free use of the football league’s fixture lists. The plaintiffs disputed the ongoing use of the fixture lists, arguing that the defendants had infringed the league’s intellectual property rights in the lists. However, on 1 March 2012, the European Court of Justice decided once and for all that Football Dataco’s fixture lists are not protected by database copyright.
This proceeding follows a series of previous cases instigated by Football Dataco on the eligibility of copyright protection for football fixture lists. Football Dataco has featured in previous blog posts on database protection and the compilation of data about football matches in progress.
Under the European Database Directive [Directive 96/9/EC of 11 March 1996], copyright protection is granted to a database if the selection or arrangement of the contents is the author’s intellectual creation. Alternatively, a sui generis “database right” can also be granted when the contents of the database have been acquired, verified or presented with substantial investment.
The preparation of Football Dataco’s football fixture list, like many others in the sporting industry, is partly computer automated and partly labour-intensive. In the present case, several stages were involved in the preparation of the fixture list. First, the dates for the start and end of the season, and any rival competitions were established. Secondly, a questionnaire was sent to each of the clubs, asking for any specific match requests. A computer program was then used to sequence and pair any requests, and finally review the content of the fixture list. The review stage involved both the computer software and manual labour.
At first instance, the UK Court upheld the decision in the ‘Fixtures Marketing’ series of cases (2004), finding that the football fixture lists in question did not give rise to the sui generis database right. This is because, the sui generis right can only arise where it can be established that substantial investment has gone into the obtaining, verification or presentation of pre-existing data, rather than the creation of new data for the contents of the database. In the Football Dataco case, the Court was satisfied that obtaining the contents of the football fixture list did not require any investment independent of that required for the creation of the data contained in that list. Therefore, the central question for the Court of Justice to consider was whether the fixtures could be protected as a database under copyright law.
The Court of Justice held that the football fixture lists were created from the same data as that contained in the database and, as a consequence, the effort and skill in creating the lists was not relevant. What is relevant is the selection and arrangement of the data, with which the author creates the structure of the database. Copyright protection does not therefore extend to
the content of the data, but rather the structure and arrangement of the database.
The Court of Justice went on to consider the concept of intellectual creation, a condition for database copyright protection. This concept is linked to the criterion of originality, satisfied when the author is able to setup a database and express his or her creative ability without technical constraint. The Court confirmed that copyright protection will be justified where the author’s labour and skill in the selection or arrangement of the data expresses originality. However, because the lists were created from the same data as that contained in the database, the criterion of originality was not satisfied.
Whilst this decision clarified the criterion for copyright protection of databases, it did create a degree of uncertainty in the determination of what constitutes originality. The degree of judgment and discretion required to satisfy the concept of originality by the creators of the fixture list remains unclear.