Football fixture lists - Has the final whistle been blown for database copyright?

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Case C-604/10 Football Dataco Ltd and others v. Yahoo! UK Limited and others Advocate-General Mengozzi has today delivered his Opinion on questions referred to the Court of Justice of the European Union ("CJEU") in relation to the subsistence of database copyright in football fixture lists. This non-binding Opinion addresses the application of the Database Directive (Directive 96/9/EC) and argues that the Claimants' claim that database copyright subsists in the fixture lists for the Premier and other football leagues should be rejected. In summary, the Advocate-General supported the Defendants' arguments which, if ultimately followed, would mean that the Claimants would not be able to charge for the use of football fixture lists. Background In 2004, the ECJ held in the Fixtures Marketing cases that the "sui generis" database right, a new right under the Database Directive, did not subsist in football fixture lists on the grounds that the investment made by the leagues in preparing the fixture lists was attributed to the creation of the data rather than the "obtaining, verification or presentation" of that database.

In the Football Dataco case, which focuses on the subsistence of database copyright, the Claimants are the various sporting bodies responsible for organising the Premier League and other football leagues in both England and Scotland, as well as the companies involved with the exploitation of data and rights in connection with those leagues. The Defendants (represented by Olswang), are Yahoo! UK Ltd, a media company; Stan James, a betting company and Enetpulse, a Danish company who supplied data to Stan James.

The Database Directive sets out the test for database copyright which is satisfied when the "selection and arrangement" of the contents of the database is the "author's own intellectual creation", a test which "raises the bar" above the test of originality for "ordinary" literary copyright. At first instance, the High Court held that this test was satisfied in respect of football fixture lists as the relevant "selection and arrangement" involved in the choice of fixture dates, venues and other scheduling decisions required a sufficient degree of "judgment and discretion" on behalf of the author. This decision was appealed and the Court of Appeal subsequently referred a number of questions to the CJEU invite guidance as to the scope of rights under the Database Directive.

The parties' arguments

Before the CJEU, the Claimants argued that database copyright was different from the sui generis right and as such the CJEU's reasoning in the Fixtures Marketing cases should not be applied in this case. The test "author's own intellectual creation" had already been interpreted by the CJEU in previous cases and the trial judge in the UK had already determined that this test had been satisfied. No other criteria were relevant and Yahoo!'s argument that only selection or arrangement of pre-existing data was relevant was incorrect.

In contrast, Yahoo! argued that the Fixtures Marketing cases should be followed and so the effort expended in creating the fixtures, or the underlying data, should not be taken into account. Yahoo! submitted that the fixture lists were the product of applying fixed, pre-determined rules and therefore no creativity was involved.

The Advocate-General's Opinion

The Court of Appeal asked the following questions of the CJEU:

(1) In Article 3(1) of Directive 96/9/EC … what is meant by “databases which, by reason of the selection or arrangement of their contents, constitute the author’s 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)?

(c) does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?

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

In summarising his conclusions on these questions, the Advocate-General's Opinion is that:

"...in answer to Question 1, the Court should state that a database can be protected by copyright under Article 3 of Directive 96/9/EC only if it is an original intellectual creation of its author. The activities involved in the creation of the data cannot be taken into account for the purposes of that assessment. In the case of a football fixture list, the determination of all the elements relating to each individual match is a data creation activity."

"In answer to Question 2, it must therefore be stated that the Directive precludes national law from conferring copyright protection upon a database which does not meet the requirements laid down in Article 3 of the Directive itself."

Conclusion

Whilst the Advocate-General's Opinion is non-binding, the clear conclusions drawn provide guidance to the CJEU when it hands down its judgment in early 2012.

For further information contact Paul Stevens.