The results are in from the Court of Justice of European Union (“CJEU”)’s review of the questions referred in Football Dataco v Yahoo! and European Football Associations everywhere may prefer to look away now! In a useful clarification of the law, the CJEU has determined that football fixture lists are not entitled to copyright protection under the Database Directive (the “Directive”) and therefore republishing such data without a licence will not infringe any such rights of fixture list owners.
Yesterday’s decision was issued in response to a number of questions referred by the Court of Appeal in relation to a claim by the English and Scottish Premier and Football Leagues and their commercial partners that the use by Yahoo! and others of their football fixture lists to provide news and assist in betting activities infringed their rights as owners of the fixture lists.
The Directive, as implemented into UK Law by the Copyright and Rights in Databases Regulations 1997, provides two separate rights for database owners. First a stand-alone “sui generis” right in the contents of the database itself and separately copyright in the selection and arrangement of the database. In the light of the CJEU’s earlier decision in the Fixtures Marketing and British Horseracing Board case that fixture lists were not entitled to protection under the ‘sui generis’ database rights, the claimants instead asserted database copyright infringement under the terms of the Directive, or as a compilation under the Copyright Designs and Patents Act 1988 a UK statutory right that pre-dated the Directive.
In order to be protected by database copyright, the claimants needed to demonstrate that “by reason of the selection or arrangement of its contents” the fixture lists constitute “the author’s own intellectual creation”. It was not disputed between the parties that the preparation, planning, and generation of a season of football fixtures involves complex logistical issues and entails considerable labour, judgement and skill. However, the structure and design of the lists themselves were relatively simple and involved minimal creativity. The CJEU was therefore asked to determine whether the work involved in creating the fixtures could be classified as ‘selection or arrangement’ and hence qualify for database copyright protection. The CJEU’s response to this question was an emphatic no.
The CJEU held that the purpose of database copyright is to protect the structure of a database. As stated in the Directive, a database can only be protected by copyright if the selection and arrangement of the fixture list constitutes the original intellectual creation of its author. The CJEU acknowledged that what amounted to an author’s own intellectual creation was a question for the national courts, although following its earlier decision in Infopaq the CJEU suggested that selection and arrangement will be original when it amounts to an original expression of the creative freedom of its author, not dictated by technical considerations or constraints. For the purpose of that assessment, the activities involved in the creation of the data contained within the database cannot be taken into account - only those involved in collating, verifying or presenting the data in a structured format. In the case of a football fixture list, the determination of all the elements relating to each single match is a data creation activity. The CJEU held that provided the selection or arrangement of a data set amounts to an original expression of the creative freedom of its author, and goes beyond the mechanical effort required to collate the data or input it into a database, it is capable of database copyright. The fact that in the process of compiling a database the owner has added to or attributed significance to pre-existing data (for example adding a date) is not a relevant consideration in the assessment of whether the database itself is protected by copyright.
The CJEU likewise held that the Directive is an instrument for maximum harmonisation across EU member states and therefore precludes the existence of national rights in the nature of copyright in databases other than those provided for by the Directive a decision which signifies the end of the uneasy coexistence between database and compilation copyright in UK law following the implementation of the Directive.
Although the CJEU decision still needs to be applied by the English courts, the views expressed by the CJEU appear to sound the death knell for licensing fees for fixture lists. This is good news for publishers, news providers and betting companies who use such data in their business activities but makes gloomy reading for those organisations that invest in creating and exploiting list-based data. Going forward owners of sport fixture lists, telephone directories or broadcast schedules will need to think more creatively over how to protect their databases either by restructuring their data compilation processes to maximise the potential to claim the sui generis database rights, or by asserting copyright in the underlying data.