On 1 March 2012 the European Court of Justice (ECJ) gave judgment on the much-anticipated Football Dataco case stating that football fixture lists are not protected by copyright if the compilation is not the author’s own intellectual creation even if the compilation itself required significant labour and skill. This decision will impact any company that trades in data. Accordingly, if you license a database, you will need to ensure that the data comprised within it is presented in a sufficiently creative manner that enables it to be protected by copyright.

In Football Dataco and others v YAHOO! UK Ltd and others, Football Dataco organised football matches in England and Scotland and produced fixture lists detailing scores, penalties and player substitutions which were available to their online customers via the web. YAHOO! used these fixture lists to compile data for its own databases. YAHOO!’s business was largely, if not solely, reliant upon Football Dataco’s supply of this data.

Football Dataco claimed the use of this data by YAHOO! without a licence breached their rights by infringing copyright under the Copyright Design and Patents Act 1988 (CDPA) and Articles 3 and 7 of Directive 96/9/EC (Database Directive).

  • Article 3 affords copyright protection to databases that in some form constitute the author’s own intellectual creation in regards to the selection or arrangement of its contents. For such protection to exist, evidence of labour and/or skill in the creation of the database itself is not sufficient.
  • Article 7, known as the sui generis or database right, subsists whether or not the database or its contents are a copyright work but clear evidence of substantial investment in either the obtaining, verification or presentation of the data is required.

The Court of Appeal held the football fixture lists were protected by Article 3 but no right could be established under Article 7. YAHOO! appealed this decision and the Court of Appeal made a preliminary reference to the ECJ to clarify:

  1. What is meant by “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation”; and
  2. Whether the Database Directive precludes national rights in the nature of copyright in databases other than those provided for by the Directive

In previous decisions, as seen in Fixtures Marketing Cases (The British Horseracing Board (BHB) and others, Case C-203/02 [2004] ECR 1 1-10415) the ECJ has ruled that the Article 7 database right does not attach to fixture lists or race course data. This is because investment in the creation of data has been held not to amount to investment in the “obtaining, verification or presentation of such data” as required by the Database Directive. In other words, the courts are reluctant to afford database right protection to databases which are created by the party seeking to rely on such protection. Consequently, the need to seek to rely on copyright protection is increasingly important to retain value in a database.

Whilst awaiting the formal decision from the ECJ, the Advocate General made some preliminary remarks highlighting a clear distinction between the creation of data and its subsequent arrangement. He stated that a database must be the intellectual creation of the author to be protected by Article 3 of the Directive and that protection may be provided by implementing a creative element when the pre-existing data is assembled into a database.

Upon handing down its decision earlier this week, the ECJ have seemingly followed the Advocate General’s opinion. The Database Directive does not extend protection to databases where significant labour and skill are required in the creation if the labour or skill does not express any originality in either its selection or arrangement. Furthermore, it was held that the Database Directive is intended to harmonise European law, so that, following the ECJ ruling, a claim for copyright protection as a literary work under the CDPA was not longer available.

Whilst awaiting the application of this decision by the Court of Appeal, it is clear the economic damage football leagues will face by having to curtail their income from licensing fixture lists but the knock on effect to other databases has yet to be seen.