Football DataCo/Britten Pools
The collection and exploitation of data and databases is increasingly important to modern business, with some commercial models, particularly internet and digital media businesses, being founded entirely on these activities. One of the justifications for introducing additional protection for databases in the EU Database Directive (96/9/EC) was that "databases are a vital tool in the development of an information market within the Community; whereas this tool will also be of use in many other fields".(1)
The Court of Appeal recently revisited the question of how data and databases are protected in Football DataCo Ltd/Brittens Pools and again referred questions to the Court of Justice of the European Union (ECJ). This update considers what protection is available for databases.
Football DataCo Ltd grants licences to third parties to allow them to reproduce certain information relating to the professional football leagues of England and Scotland, including player and match data and fixture lists. It brought proceedings against Brittens Pools Ltd, Yahoo! UK Ltd and Stan James (Abingdon) Ltd for publishing the English and Scottish league fixture lists on their websites without a licence. In bringing the claims, Football DataCo sought to rely on a sui generis database right and database copyright (both under the directive), and on literary copyright in the fixtures themselves pursuant to the Copyright Designs and Patents Act 1988.
The main questions were whether, as a preliminary issue, the lists were protected by the sui generis database right; database copyright or other literary copyright.
Sui generis database right
A database will benefit from the sui generis database right under Article 7 of the directive if there is "substantial financial or professional investment in obtaining, verifying or presenting the content".
There has been substantive case law regarding the scope and application of the right, in particular British Horseracing Board v William Hill and Fixtures Marketing. In those cases it was decided that the sui generis database right does not protect sporting fixture lists unless it can be established that there was substantial investment in obtaining, verifying or presenting the materials, independent of the resources used to create the materials.
This does not, of itself, preclude a creator from claiming the protection of the sui generis database right, provided that it can establish that there has been "investment in the obtaining of the contents" of a database with regard to the resources used to seek out existing independent materials and collect them in the database, not merely in the creation of materials making up the contents of a database.
In light of this prior case law, the High Court held in Football DataCo/Brittens Pools that the right could not exist in the fixture lists. Even though Football DataCo had invested in creating the data, no additional investment had been made in "obtaining, verifying or presenting" the content as required under the directive. The Court of Appeal agreed.
The High Court found that database copyright could be said to exist in the fixture lists, provided that the claimants could show a degree of creative endeavour in their production. The judge was satisfied that the production of the lists involved not only "sweat of the brow" work, but also skill and judgement, as certain solutions were unworkable and some solutions would work better than others. The defendants appealed this point, claiming that the intellectual creation of the authors was in creating the data (ie, allocating a date to a match), not its selection or arrangement.
The Court of Appeal noted that Football DataCo's creation of the fixture lists involved considerable skill and judgement. However, the question was whether the skill and judgement involved was the right kind for the purpose of Article 3 of the directive - in other words, could the fixture list be said to constitute the author's own intellectual creation?
In the Court of Appeal's opinion, both sides' contentions were soundly reasoned. It referred the point to the ECJ for consideration. However, the court noted that if the claimants were right, virtually all of the ECJ's earlier rulings about the sui generis right under Article 7 would be bypassed. The Court of Appeal also decided to refer a further point to the ECJ as to whether an "author's own intellectual creation" required artistic input (which, on the face of the wording of Article 3, it did not).
The court therefore referred the following questions on the database copyright under Article 3:
"In Article 3(1) of the Directive, 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:
- Should the intellectual effort and skill of creating data be excluded?
- Does 'selection or arrangement' include adding important significance to a pre-existing item of data (as in fixing the date of a football match)?
- Does 'author's own intellectual creation' require more than significant labour and skill from the author and, if so, what?"
The High Court held that there was no UK literary copyright in Football DataCo's database. The claimants appealed this point and argued before the Court of Appeal that the directive did not preclude a database attracting literary copyright, but that it instead created two additional rights: the new sui generis right under Article 7 and a new database copyright under Article 3. The court doubted that that was the directive's intention - it was noted that if the claimants were right, the key object of harmonisation across the European Union would not have been achieved. However, the Court of Appeal considered that there was sufficient doubt about the point to warrant a referral. The Court of Appeal therefore also asked the ECJ to answer the following question: does the directive preclude national rights in the nature of copyright in databases, other than those provided for by the directive?
The courts have repeatedly decided that the sui generis database right will not protect sporting fixture lists, unless it can be established that there was substantial investment in obtaining, verifying or presenting those materials, independent of the resources used to create the materials. This remains the position.
However, the Football Dataco references to the ECJ on database copyright and on independent literary copyright raise the possibility that such databases will be protected. This is potentially good news for those who own or invest in such databases, although the final position will remain uncertain until the ECJ decides on the issues. The continued uncertainty and complexity around the scope of database right protection reinforces the criticism that the directive did not achieve its objectives and that reform is required - a point recognised by the European Commission when it reviewed the position in 2005.
In the meantime, those who own or exploit databases are recommended to seek advice from the outset on how best to structure their data operations (both creation and collection) and investments in them, as well as the other legal and technical protections that may be available to protect their valuable assets, from confidentiality and licensing arrangements to technical measures such as access restrictions, 'watermarking' and 'seeding' the databases with false entries.
For further information on this topic please contact David Cran or Georgia Warren at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email ([email protected] or [email protected]).
A version of this article was published in the April/May 2011 issue of Computers & Law magazine (SCL).