David Cran Paul Joseph March 12 2012 Football Dataco: no database copyright protection for fixture lists RPC | Intellectual Property - United Kingdom David Cran, Paul Joseph Intellectual Property FactsECJ judgment CommentThe Court of Justice of the European Union (ECJ) has delivered its judgment in the keenly awaited Football DataCo case.(1)FactsFootball DataCo is the football-fixture licensing arm of the English and Scottish professional football leagues. It makes money by licensing fixture lists to newspapers, bookmakers and other commercial entities. It objected to the unlicensed use of its fixture lists by Yahoo, Brittens Pools and Stan James and sued for infringement of its rights.Football DataCo knew that it faced an uphill battle, as it was clear from previous case law that no sui generis database right subsists in fixture lists because the creation of those lists involves insufficient investment in collecting and verifying of data, as required under Article 7 of the EU Database Directive (96/9/EC). Football DataCo therefore needed to argue that it could still claim for infringement of copyright in its fixture lists, as preserved by Article 3 of the directive. The Court of Appeal referred this issue to the ECJ (for further details please see "Protecting rights in databases"). Advocate General Mengozzi provided his opinion on December 15 2011 and the ECJ has now given its ruling.ECJ judgment Article 3(1) of the directive provides that database copyright protection is afforded to "databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation". The ECJ has elaborated on this wording by stating that a database can be protected by copyright under Article 3 only if "the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author". Football fixture lists will not be protected where there is no such creative freedom - the wording of the judgment clearly implies that the ECJ does not consider the creation of fixture lists to meet this standard. The effort expended in creating the database is irrelevant. Rather, what is required in respect of the database is: "substantial investment in collating or verifying" in order to establish a sui generis database right for the purposes of Article 7; or an "expression of creative freedom in selecting or arranging" in order to establish database copyright for the purposes of Article 3. Therefore, the ECJ held that the effort expended by Football DataCo to determine teams, dates and times of matches did not assist it.The ECJ has also confirmed that the directive precludes EU member states from affording copyright protection to databases that do not meet the requirements of Article 3. In other words, if a database that was created after the directive was implemented in the United Kingdom is not protected by database copyright (under Article 3), it cannot be protected by copyright as a literary work.CommentThe ECJ has ruled that database copyright will protect databases only where "the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author". The Court of Appeal must now apply this ruling, but the ECJ has provided a strong indication that fixture lists are not protected by copyright. This is good news for bookmakers and news providers in the sports arena, and possibly also for information publishers in other fields, such as music and finance. Commercial entities that make money through creating and distributing data will need to consider carefully how their business model can be best protected.For further information on this topic please contact David Cran or Paul Joseph at RPC by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email ([email protected] or [email protected]).Endnotes(1) Football DataCo v Yahoo! UK Ltd, C-604/10, March 1 2012.