Copyright in Football Fixture Lists – A Game of Two Halves
Case review: C-604/10 Football Dataco Ltd and others v. Yahoo! UK Limited and others
On December 15, 2011, Advocate-General Mengozzi submitted his opinion regarding a reference to the Court of Justice of the European Union (‘ECJ’) from the Court of Appeal of the United Kingdom. The question before the court concerned was whether football fixture lists could be safeguarded under the European Union’s Database Directive 96/9/ EC (‘the Directive’) on the legal protection of databases. In his non-binding Opinion, the Advocate-general opined that database copyright protection cannot apply to football fixture lists.;
The European Union’s Database Directive came out in 1996 with the objective of providing an effective legal mechanism for the protection of databases and thereby encouraging the development of the database industry in the European Union (‘EU’). Article 1 of the Directive defines ‘database’ as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”. Before the introduction of the Directive, there existed different kinds of protection for databases in different countries. While in countries like UK and Netherlands, databases were protected by copyright through the ‘sweat of brow’ principle, in many other EU countries they weren’t protected because they did not satisfy the requirement of ‘author’s intellectual creativity’ for copyright protection. The Directive thus sought to bring about uniformity in database protection laws.
Under the Directive, the threshold for protecting a database by copyright is the existence of the author’s own intellectual creation in the arrangement or selection of the data in the database. Such protection is not extended to the contents of the database. However, in cases where there is substantial investment in obtaining, verifying or presenting the data in the database, the contents will be protected by database rights. Article 7 of the Directive provides the maker of a database with a sui generis right to prevent unauthorized extraction and/or re-utilization of all or a substantial part of the contents of a database. The Directive provides for a 15 year term of protection, and if further substantial investment is made in obtaining, verifying or presenting the data, a new term of protection comes into effect.
The impact of the Directive was soon observed in the sporting world when in the case of British Horseracing Board and Others v William Hill Organisation Limited, it was initially held that the database information of the British Horseracing Board (BHB), comprising details such as the lists of runners, names of jockeys, racing calendar and details of every licensed horse in the UK, which William Hill had posted on its website, was infringing BHB’s rights. However the Court of Appeal referred the matter to the ECJ and later accepted the interpretations made by it, that simply being linked to the creation rather than the obtaining of data will not by itself preclude sui generis protection under the Article; and the investment in obtaining must be distinct from the investment in creating, and in the case of BHB the investment went into creating the data, rather than obtaining it.Accordingly, the Court of Appeals ruled in favour of William Hill denying BHB database right protection.
The Fixtures Marketing cases (Cases C-46/02, Fixtures Marketing Ltd v. OyVeikkausAb ; C-338/02, Fixtures Marketing Ltd v. SvenskaSpelAB ; and C-444/02, Fixtures Marketing Ltd v. OrganismosPrognostikonAgononPodosfairou AE) involved a company, Fixtures Marketing, which was retained by the organisers of English and Scottish football to exploit fixture lists through licensing for betting pools and other purposes. Cases were brought against parties who without paying the license fee had utilised data from the Fixtures Marketing database. The ECJ held that a sui generis database right did not subsist in football fixture lists. The reasoning provided was that investment made by football leagues in preparing fixture lists can be attributed to the creation of data rather than the obtaining, verification or presentation of that database.
In Football Dataco Ltd and others v. Yahoo! UK Limited and others, the applicants are the organisers of the English and Scottish football leagues, as well as companies involved in the exploitation of data and rights in connection with the leagues. The organisers and these companies are involved in drawing up and making public the list of all the fixtures to be played each year in those leagues. The defendants are parties who utilise the schedules prepared by the applicants to provide news and information and also organise betting activities. Football Dataco and Others, the applicants, contended that since they compile the football fixture lists, the defendants ought to pay them for the right to use the football fixture lists. The applicants claimed that fixture lists are protected under the Directive and are entitled to both English common law copyright and an Article 7 sui generis right.
The court of first instance held that the Directive’s test for database copyright 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. When the defendants appealed, the British Court of Appeal referred the decision to the ECJ for consideration. While the earlier decisions of the ECJ in the Fixtures Marketingcases and the BHB case had ruled out protection on grounds of a sui generis right, the Court of Appeal referred the following questions to the ECJ to remove the ambiguity surrounding copyright protection to fixture lists:.
‘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?’
The first question posed before the court essentially asked for details of conditions under which a database may be protected by copyright under the Directive. In order to answer this question a review was made of the ECJ’s case-law on football fixture lists, and the relationship between the two types of protection offered under the Directive was ascertained. In answer to the first sub-question, it was held that the effort expended in the creation of the data cannot be taken into consideration for the purposes of assessing the eligibility for protection of the database. With regard to the second sub-question it was held that although the addition of new elements to the pre- existing data as a result of their being entered in a database can be relevant for the purposes of assessing whether the database is eligible for protection, in the case of a series of football matches entered in a database, there is no ‘enhancement’ of the pre- existing items of data. As to considering whether the author’s own intellectual creation requires more than significant labour and skill from the author, it was held that the mere application of effort or skill does not suffice to make a database an intellectual creation protected by the copyright.
Thus Advocate-General Mengozzi in his opinion stated that a database can be protected by copyright under Article 3 of the Directive 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.
The second question referred concerned whether protection provided under the Directive is the only type of copyright protection possible for a database or whether national law may confer the same protection on databases which do not meet the necessary conditions under the Directive. The Advocate-General answered this question by referring to Article 14 of the Directive which provides special transitional arrangements for databases formerly protected by copyright under national rules which do not meet the requirements for copyright protection under the Directive. Those databases are to retain copyright protection for the remainder of the term of protection afforded under the national arrangements preceding the Directive. Thus a database which cannot be protected under the requirements of the Directive, and whose term of protection under national law has expired, cannot be indefinitely protected under the national law. Therefore, it was held 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.
Thus the ECJ opinion clearly established that football fixture lists cannot be protected by copyright under the EU’s Database Directive. The requirement for copyright protection is that the work must be an original intellectual creation of the author and for the purpose of assessing that, the activities involved in the creation of the data cannot be taken into account. Also, the opinion laid down that the Directive is the definitive guideline for imparting legal protection to databases, and disparate rules of the different national laws cannot confer protection to works which do not satisfy the Directive guidelines. Though Advocate-Generals’ Opinions are non-binding on the ECJ, they are usually upheld in the final rulings of the Court, and in this case the final ruling will be made in 2012.
In India, the matter of sports fixtures has not yet been litigated explicitly. That said, judicial interpretation is split on whether ‘sweat of the brow’ is sufficient to confer copyright protection or whether at least a modicum of creativity is an essential pre-condition. It is therefore difficult to tell where a court would come out if faced with this issue.
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