The highly anticipated database case dealing with football fixtures was recently delivered by the Court of Justice of the European Union (CJEU). Little however changed from the court’s approach cyrstallised in its earlier ruling delivered in another database case dealing with fixture lists in horseracing.
Football fixtures lists have been the subject of much debate as to whether they attract copyright protection- Josette Grech
Football fixtures listings consist of a compilation of football matches that have been arranged for a particular time and place during any particular season. The process of preparing fixture lists naturally involves a person’s efforts in collating information of what matches are on, when and where, in order to put together a listing that can be considered comprehensive.
Football fixtures lists have been the subject of much debate as to whether they attract copyright protection. As early as 1959, a legal battle in the UK paved the way for football leagues to implement licencing schemes for football fixtures lists, to which bookmakers and pool operators were required to subscribe, when the UK court deemed football fixtures lists to be literary works and thus subject to copyright protection.
More recently, the Database Directive, which introduced a pan-European right, was passed to harmonise the law across Europe in relation to collections of data arranged in a systematic way. In terms of the directive, databases can be subject to copyright protection in themselves when the collation of the data constitutes the author’s own intellectual creation, or to a sui generis right when the collation of the data requires substantial investment in obtaining, verifying and presenting the contents of the data.
Football DataCo (Dataco) is the UK football fixture licensing arm of the UK professional football leagues. Its activity consists of protecting, marketing and commercialising their fixtures by licensing fixture lists to newspapers, bookmakers and other commercial entities, thus providing revenue for the leagues and the professional game itself. Yahoo!, Brittens Pools a pools company and Stan James, a betting company, were not licensed to use its fixture lists, which they were making nonetheless available to the public for betting services and online information services without its authorisation. Dataco objected to such use and sued for infringement of its rights before the UK courts, claiming that it owned the copyright in annual football fixtures lists it produced.
The English Court of Appeal referred the matter to the CJEU for a preliminary ruling. In following Advocate General Paolo Mengozzi’s opinion presented late last year, the Court of Justice confirmed that the sui generis database right did not subsist in the fixture lists which can only be subject of copyright protection when there is creativity on the part of their author. Although for the first time the court recognises that there is a protectable right in the fixture lists, it did hint that the creation of fixture lists may not consitute an original expression of the author.
No doubt, few can disclaim the effort required to create a database, but this is irrelevant when it comes to protection under the directive, which requires either substantial investment for collation or expression of creative freedom, the author’s own personal touch. For that reason, the CJEU held that the intellectual effort and skill, even if significant, expended by Dataco to determine teams, dates and times of matches cannot trigger copyright protection.
Of importance is the court’s emphasis on the fact that the Database Directive precludes national legislation which grants databases copyright under conditions other than originality, although it noted that the status quo for databases created before 27 March 1996 remain protected under prior, different, if at all, eligibility criteria.
While this ruling is welcome news for bookmakers and news providers in the sports arena, commercial entities that make money through creating and distributing data will need to consider how their business model can be best protected. In any case, it remains to be seen whether unauthorised users are entitled to use fixtures lists without a licence, or whether their use will amount to infringement of the intellectual property rights.
jgrech@demarcoassociates.com
Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.