Yahoo! wins European Leg on protection of Football Fixture Lists

United Kingdom

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

The Court of Justice of the European Union ("CJEU") today handed down its Judgment concerning the copyright protection for Football Fixture Lists.   Previously we reported here on the Advocate General's opinion in this case, which was guidance for the CJEU ahead of its Judgment.

The CJEU was asked questions by the Court of Appeal relating to the merits of the law surrounding whether or not copyright subsisted in the football fixture lists.

In short, the CJEU's Judgment adopts the arguments put forward by Yahoo! and rejects the arguments advanced by Football Dataco in relation to the questions referred to it. Those questions are as follows:

  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:

    1. should the intellectual effort and skill of creating data be excluded?
    2. does "selection or arrangement" include adding important significance to a pre-existing item of data (as in fixing the date of a football match)?
    3. 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?

The Court provided the following answers to those questions:

  1. Article 3(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that a 'database' within the meaning of Article 1(2) of that directive is protected by the copyright laid down by that directive provided that the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author, which is a matter for the national court to determine.

    As a consequence:

    • the intellectual effort and skill of creating that data are not relevant in order to assess the eligibility of that database for protection by that right;
    • it is irrelevant, for that purpose, whether or not the selection or arrangement of that data includes the addition of important significance to that data, and
    • the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.
  2. Directive 96/9 must be interpreted as meaning that, subject to the transitional provision contained in Article 14(2) of that directive, it precludes national legislation which grants databases, as defined in Article 1(2) of the directive, copyright protection under conditions which are different to those set out in Article 3(1) of the directive.

Further analysis

In its Judgment today, the CJEU made it clear that it was for the English Court to determine whether the activity conducted by the football leagues was sufficient to meet the test of originality required in order to attract copyright protection.  As such, the CJEU's judgment will have to be applied by the Court of Appeal before it will have binding effect.  However, in formulating its decision, the CJEU also made the following findings:

  • The particular intellectual resources deployed by the Football Leagues described by the English High Court in its Judgment are of no relevance in order to assess whether the football fixture lists are eligible for copyright protection;
  • The notion of author's intellectual creation (the pre-requisite to establishment of copyright infringement) refers to the criterion of originality and that criterion is satisfied when the author expresses his creative ability in an original manner by making free and creative choices;
  • The author of the relevant database must therefore stamp his "personal touch" on his work;
  • No other criteria than that of the test of originality is to be applied to determine the eligibility of protection.
  • As such, unless that test for originality is passed, the adding of important significance to data is also of no relevance.

For further information please contact Paul Stevens, who acted for Yahoo! in this matter.