On 1 March 2012, the Court of Justice of the European Union passed judgement on Football Dataco Ltd v Yahoo! UK Ltd  CJEU C-604/10, concluding that the football fixture lists in question are not protected by copyright as there is insufficient intellectual creation on the part of the author.
Since 2001, Football Dataco Ltd (FDL) has organised the English and Scottish football leagues. Yahoo! UK Ltd (Yahoo!) and others have used the fixture schedules produced by FDL to provide news and to organise betting activities. FDL sought payment from Yahoo! for the use of the football fixture lists, claiming protection under the Database Directive (96/9/EC) (the Directive) on the basis of both copyright and the sui generis database right. Following European case law, the UK courts rejected the possibility of protection based on the sui generis right, but the question of whether such fixture lists might be protected by copyright was referred to the CJEU.
The CJEU followed the opinion of Advocate General Mengozzi from 15 December 2011 and found that copyright protection under the Directive concerned the structure of the database and not the data itself. The concepts of “selection” and “arrangement” in the Directive refer to the selection and arrangement of data in order to give the database structure. These concepts do not extend to the creation of the data contained in that database.
In the case of a football fixture list, the determination of all the elements relating to each match, such as date and venue of play, is a data-creation activity. The intellectual effort and skill of creating this data is not relevant to the assessment of copyright protection of the database. Outside the context of football fixtures, the author choosing to enter those particular pre-existing data in a database may constitute an arrangement of contents that can be taken into consideration for the purposes of copyright protection.
The CJEU observed that the concept of “intellectual creation”, a necessary condition for copyright protection, referred solely to the notion of originality. The fact that the setting up of the database required significant skill and labour does not justify protection. In relation to setting up a database, the notion of originality is satisfied when, through the selection or arrangement of the data, the author expresses his creative ability in an original manner by making free and creative choices. The notion is not satisfied when, as here, the setting up of the database is “dictated by technical considerations, rules or constraints, which leave no room for creative freedom”. For the lists to qualify for copyright protection, procedures for creating the lists must be supplemented by elements reflecting originality in the selection or arrangement of the data contained therein.
The CJEU pointed out that the Directive harmonises database copyright law. For this reason, national legislation granting copyright protection on terms different to those found in the Directive would be incompatible with European law.
Although copyright protection is not available in this case, the Advocate General commented in his opinion that there is the possibility that a football fixture list could be eligible for copyright protection under the Directive. A fixture list that utilises colours, or other graphic elements of the author’s “intellectual creation” to represent the matches, could qualify for copyright protection. It is also worth bearing in mind that infringement depends on the appropriation of elements that constitute the intellectual creation of the author. As such, the copyright protection available would extend only to the means of the representation, and not the data represented, meaning protection may not extend to the elements for which protection is primarily sought.