The collection and exploitation of data and databases is increasingly important to modern business. Indeed, some business models (particularly internet/digital media businesses) are founded entirely on these activities. One of the justifications for introducing additional protection for databases within the 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” (Recital 9).

After the Court of Appeal recently revisited the question of how data and databases are protected in the Football DataCo Ltd/Brittens Pools case and again referred questions to the Court of Justice of the European Union (ECJ), we ask what protection for databases is now available?

The Football DataCo/Britten Pools case

Football DataCo Ltd (FDC) 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 fixtures lists. FDC 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 those claims, FDC sought to rely on a “sui generis” database right, database copyright (both under the Database Directive) and literary copyright in the fixtures themselves pursuant to the CDPA 1988.

The main questions considered by the court were whether, as a preliminary issue, these fixture lists were protected by: (1) the “sui generis” database right; (2) database copyright; and/or (3) other literary copyright.

(1) The “sui generis” database right

A database will benefit from the “sui generis” database right under Article 7 of the Database Directive if there is “substantial financial or professional investment in obtaining, verifying or presenting the content”. There has been some substantive case law regarding the scope of the right and its application, in particular in the British Horseracing Board (BHB) v William Hill case and the Fixtures Marketing cases. In those cases, it was 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 does not, of itself, preclude the creator from claiming the protection of the “sui generis” database right, provided it can be established 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 and not just in the creation of materials making up the contents of a database.

In light of this prior case law, the High Court in the Football DataCo/Brittens Pools case held that the “sui generis” database right could not exist in the fixture lists as, even though Football DataCo had made an investment in creating the data, there was no additional investment in “obtaining, verifying or presenting” the content as required under the Directive. The Court of Appeal agreed.

(2) Database copyright

The High Court did, however, find that database copyright could be said to exist in the fixture lists, provided that the claimants could show a degree of creative endeavour in the production of the fixture lists. Mr Justice Floyd was satisfied that the production of the fixture lists involved not just “sweat of the brow” work, but also skill and judgement, as there were some solutions which simply would not work and other solutions which 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, say, Arsenal v Chelsea on 26 April) and not its selection or arrangement.

The Court of Appeal noted that the creation of the fixture lists by Football DataCo 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, ie could the fixture list be said to constitute the author’s own intellectual creation?  

In the Court of Appeal’s opinion, there was sound reasoning for both sides’ contentions and so 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 any artistic input, which on the face of the wording of Article 3 it did not.

The court therefore referred the following questions to the ECJ 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?  

(3) Can there be literary copyright in a database, independent of the rights under the Database Directive?

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 of Appeal very much doubted that that was the intention of the Directive. As Jacob LJ noted, if the claimants were right, the key object of harmonisation across the EU would not have been achieved. However, the Court of Appeal took the view that there was sufficient doubt about the point to warrant a referral to the ECJ. The Court of Appeal therefore also asked the ECJ to answer the following:

Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

Comment

Case law has 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 we have the ECJ’s decision on the issues (which will be many months, if not years, away). The continued uncertainty and complexity around the scope of database right protection reinforces the criticism that the Database Directive did not achieve its objectives and that reform is required (something that was recognised by the European Commission when it reviewed the position back in 2005).

In the meantime, those who own or exploit databases are recommended to seek advice from the outset on how to best 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.

A version of this article was first published in the April/ May 2011 issue of Computers & Law magazine (SCL).