The Court of Justice of the European Union has ruled that database copyright is available only in relation to the structure of the database and not as a form of protection for its contents, and then only where there is creative originality in the selection and arrangement of the database. The court suggested that databases of football fixture lists, like those created and managed by Football Dataco, do not qualify for database copyright protection.
Where businesses create the data that populates their databases there appears to be very little likelihood of protection through database copyright, now that the CJEU has rejected the consideration of the skill and labour involved in creating the data (the fixtures) as forming part of the selection and arrangement of the database (creative effort in this regard being the pre-requisite for database copyright to subsist).
Businesses will need to consider ways to trigger copyright protection for such databases going forward, although this seems unlikely to be useful to protect the content, only the structure or presentation of the data. Where data itself qualifies for copyright, its use can be prevented piecemeal, but where it does not, as was determined by the courts in relation to individual football fixtures, it will be difficult to prevent re-use of the data once released to the public.
Whilst the CJEU said it was for the national court to assess whether football fixture lists were databases satisfying the eligibility criteria for copyright protection, the court added that unless the procedures for creating the lists (in the way described by the court of first instance) were supplemented by elements reflecting originality in the selection or arrangement of the data from which they were compiled, the current levels of "originality" offered by Dataco's fixture lists were not sufficient to be protected by database copyright as set out in the Database Directive. The Leagues have so far emphasised the role of the national court in this decision, presumably hoping that the first instance finding of the "mixture of art and science" required to get the best fit for the fixtures will be sufficient. However, the phrasing of the CJEU's decision suggests a strong indication to the Court of Appeal that the current procedures are not sufficient.
The use of sui generis database right to protect such databases was ruled out some years ago in the Fixtures Marketing cases before the CJEU for similar reasons – the investment required to qualify for sui generis database rights being in the obtaining, verification or presentation of the data, rather than its creation.
Confidentiality arrangements may provide a source of protection, although they are not usually suited to information that is made available to the public at large, as football fixtures are.
- Database copyright protection for database under Directive 96/9/EC (the "Database Directive") will apply only where the selection or arrangement of the data (which selection and arrangement of itself gives the database its structure) amounts to an original expression of the creative freedom of its author. This is a matter for the national court to determine.
- "intellectual creation" (the database must be the intellectual creation of the author to qualify for copyright protection) is judged solely in relation to the originality of the database. This is satisfied where an author expresses his creative abilities in an original manner by making free and creative choices when constructing the database.
- When making such a determination, neither the intellectual effort and skill of creating the data contained therein, nor the fact that the selection or arrangement of that data includes the addition of important significance to that data, will be relevant.
- Neither will the skill and labour required in setting up a database afford copyright protection, unless there is an expression of originality in the selection or arrangement of the data which that database contains.
The CJEU has also ruled that the Directive precludes national legislation which grants alternative copyright protection to such databases.
The CJEU was explicit in its assertion that copyright protection provided for databases under the Database Directive was for the structure of the database and not in relation to its content, i.e. otherwise unprotectable content cannot be protected by placing it in a database. The aim of the Directive was to encourage the creation of databases in order to improve information provision, rather than to provide further limits on use of information.
Overall, this is an unsatisfactory judgment, likely to lead to further uncertainty in what databases are protectable and what steps should be taken to lead to protection.
This ruling is the latest development in series of disputes and cases between the producers of fixture lists across the sports industry and those in the betting and news industries since the implementation of the Database Directive which sought to harmonise the protection of databases across the European Union. The CJEU decision is available here.
For further background on previous unsuccessful attempts to protect fixture lists using the sui generis database right, and the first instance and Court of Appeal judgments out of which this ruling arose, as well as the Advocate General's opinion see our previous newsflash.