By Clare Atkinson, associate, Fox Williams LLP
The European Court of Justice (“ECJ”) recently delivered its highly anticipated judgement in the Football Dataco Limited and others v Yahoo! UK Limited (Case C-604/10) database case, from a reference from the English Court of Appeal which was made in December 2010. This is the latest in a series of ECJ decision over the last few years that have been reshaping European copyright law.
The case concerns the conditions under which databases may be protected by copyright and challenges the traditional UK approach to the subsistence of copyright.
Football Dataco is the football fixture licensing arm of the English and Scottish Premier and Football Leagues. Dataco licenses the fixture lists for a fee to commercial entities that use the database to provide news information services and to facilitate gambling activities. The case arose out of a claim brought by Football Dataco and various football governing bodies in relation to the unauthorised use of their football fixture lists by Yahoo and various bookmakers.
The person compiling the football fixture list has to take into account certain “golden rules”:
- No club shall have three consecutive home or away matches;
- In any five consecutive matches no club should have four home matches or four away matches;
- As far as possible each club should have played an equal number of home and away matches at all times during the season; and
- All clubs should have as near as possible an equal number of home and away matches for mid-week matches.
In addition to these rules, when selecting dates for fixtures, the compiler has to take account of certain “specific date requests” from clubs. The club requests include date requests, requests for two or more clubs not to play at home on the same day, or requests for kick-off to start earlier to reduce risks of disorder. Approximately 200 requests are received per season.
Decision of the English Courts
Dataco sought to argue that one, or more, of three forms of protection should extend to the English football leaguer fixture lists:
- Database copyright protection. As conferred by the Copyright, Designs and Patents Act which gives effect to Article 3 of the Database Directive, which states that “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation";
- Sui generis database right for the creator the database to prevent extraction and/or re-utilisation of the whole, or a substantial part, of the contents of the database (under the Copyright and Rights in Databases Regulations 1997); and/or
- Copyright in the lists as a literary work under UK law (under the Copyright, Designs and Patents Act 1998).
The High Court held that no sui generis database right existed in the fixture lists as the creation of the fixture lists failed to meet the requisite level of investment in “either the obtaining, verification or presentation” of data. The investment in devising the fixture list could not be taken into account for these purposes.
The fixture lists were eligible for protection by database copyright, because their preparation required substantial amount of creative work. The compilation of the fixture lists required the use of skill and judgement, rather than the simple application of rigid criteria.
The Court of Appeal upheld the judgement of the High Court that the fixtures could not be protected by the sui generis database right, but referred questions to the European Court of Justice on whether the lists could be protected by copyright.
Decision of the European Court of Justice
Article 3(1) of the Database Directive provides that database copyright is afforded to “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation”.
The ECJ elaborated on the meaning of database copyright protection and how it should be applied, stating that a database will only be protected by copyright if “the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of the author”. The intention of the Article is to provide protection to the structure of a database and not its contents. The “selection or arrangement” referred to are the selection or arrangement of the data which give the database its structure. The effort involved in devising the data which is selected or arranged is not relevant for the purpose of determining if copyright protection is available for the database.
The ECJ held that the intellectual effort in creating the fixture lists was in respect of creating the data, rather than the structure of the database. On this basis, it is clear that the ECJ does not consider that the creation of the fixture lists would fall within the protection afforded by Article 3(1) of the Database Directive.
The ECJ observed that for copyright to subsist in the data contained within a database, it must amount to “an original expression of the creative freedom of the author”. Where the setting up of the database is “dictated by technical considerations, rules or constraints which leave no room for creative freedom”, the originality requirement will not be met.
The ECJ found that not only is the intellectual effort and skill involved in creating the data irrelevant, but also that the significant labour and skill required in setting up a database cannot justify copyright protection if there is no expression of any originality in the selection or arrangement of the data contained within the database.
This ruling highlights that the ECJ considers the protection of databases under EU law to be a narrow concept.
This is a move away from the traditional UK position, which has granted copyright protection on creations on the basis of the significant skill and labour expended on their creation. Instead the ECJ has held that the originality of the selection or arrangement of the data contained in the database, rather than the data itself, will be key in determining whether the database is protected by the Database Directive. Significant skill and labour in creation is no longer enough, in itself, to constitute “originality”.
It is clear that the fixture lists will not be protectable under the Database Directive, which will be good news for sports news services and bookmakers wishing to use the fixture lists. This will have potential implications for other sectors which currently licence databases, such as financial services or music, as they may be able to use these databases without fees.
Commercial entities that currently generate revenue through the licence and distribution of data they have assembled will have to consider how best to protect and exploit the investment of their time and skill in creating the data for such databases through other available tools.
Clare Atkinson is an associate in Fox Williams LLP’s Commerce and Technology department. She can be contacted on 020 7614 2557 or email@example.com.
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