In a fight over football fixture lists, the Court of Justice hasn’t recognised the sweat of creators.
In Case C-604/10, Football dataco Limited and others v Yahoo! UK Limited and others, the Court of Justice of the European Union (CJEU) has again given judgment that challenges the historic English approach to the subsistence of copyright by expressly stating that skill and labour are insufficient without originality.
The Claimants are responsible for the creation of football fixture lists in England and Scotland. On the facts, they clearly invest a significant amount of labour and effort in producing the fixtures each season, and in ensuring that each football club has a list that obeys certain “golden rules”, such as that no club shall play more than three consecutive home or away matches.
The fixture list must also accommodate certain specific requirements, for example to ensure that Liverpool FC and Everton FC, as clubs sharing the same home city, do not both play at home on the same day. The Defendants sought to use the data contained in the fixture list and an action was brought in the English High Court.
The Claimants sought to rely on:
- Article 3 of Directive 96/9, implemented in the UK by the Copyright and Rights in Databases Regulations ı997, which provides that “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright”;
- Article 7 of Directive 96/9, which provides for a right where the maker of a database shows that “there has been a qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” (the sui generis right); and
- copyright in the lists as works under UK law.
The High Court and Court of Appeal held that there was no sui generis database right in the fixture lists because the data per se could not be protected. Instead it was the arrangement and presentation of that data which provided the right.
The remaining issues were referred to the CJEU where the question was, essentially, whether the investment made by the Claimants in creating the databases endowed them with any copyright protection in their content that could be used to prevent the use of the data by the Defendants. In other words, does the effort of creating the data constitute the “author’s own intellectual creation” or is some originality also required?
The CJEU first noted that protection for data itself is prohibited under the Trade-Related Aspects of IP Rights and the WIPO Copyright Treaty. The intention of those agreements was to allow protection for the “structure” of a database but not its informational content per se.
The court held that the notion of an “author’s own intellectual creation” requires some form of “personal touch” to be original, as per C-5/08, Infopaq International and C-ı45/ı0, Painer. Where there is no creative freedom and the data is constrained by “technical considerations, rules or constraints” there can be no protection, as the CJEU established in C-393/09, Bezpecˇnostní softwarová asociace. Whether the database adds “important significance” to the data is irrelevant if there is no originality. Any principle that holds otherwise is inconsistent with European law.
The Court of Appeal must now apply the CJEU’s guidance. Nevertheless, there appears to be very little scope to reach a conclusion other than that there is no copyright protection in the data produced by the Claimant’s methods. Although it is possible to create more than one fixture list that satisfies all the criteria, there appears to be extremely limited room for manoeuvre when creating the data. The likelihood is therefore that the principle will be followed.
The most significant part of the judgment is that skill and labour alone are insufficient to qualify a work for copyright protection. This test of originality for copyright in databases is consistent with those for other rights and the decision therefore has a much wider effect than might first appear. It will also clarify the apparent confusion on this point expressed by the English courts in The Newspaper Licensing Agency Limited and others v Meltwater Holding BV and others [20ıı] EWCA Civ 890.