Tom Usher, EU, competition and regulatory partner, SJ Berwin
ECJ 1: football leagues 0
The ECJ says fixture lists are not protected by copyright - a decision that could cost leagues dear
In recent years the UK football leagues have made millions of pounds in licence fees from media outlets, gambling operators and the fantasy football operators for the reproduction of fixture lists, relying on a 1959 decision holding that such lists were protected by copyright.
That income stream has been questioned following the recent European Court of Justice (ECJ) judgment in Football Dataco v Yahoo!. The ECJ’s decision, which remains to be applied by the Court of Appeal (CoA), may have broader implications for other lists of data, such as TV listings.
The case concerns the test to be applied for a claim to database copyright protection under the 1996 EU Database Directive. The High Court had already dismissed a claim for infringement of the sui generis database right (applying the ECJ’s 2004 judgments in the various ’Football Marketing’ references), but had been satisfied that the lists attracted database copyright protection.
The court accepted that Football Dataco’s work in compiling football fixture lists involved significant labour and skill in satisfying a “multitude of often competing requirements”. It was not, Mr Justice Floyd held, a deterministic process where everyone would come up with the same answer and the use of computer software in the process did not eliminate the exercise of judgement and discretion.
That may be the case but, in the ECJ’s view, such significant labour and skill is irrelevant to whether database copyright protects the lists. Article 3(1) of the directive calls for “intellectual creation” by the author of the database in “the selection or arrangement” of its contents. It envisages the author expressing their “personal touch” in an original manner, by selecting or arranging the data. No protection is available where the selection or arrangement of data lacks that creative element.
Contrary to Floyd J’s ruling, selection or arrangement decisions taken during the creation of the data, such as those undertaken by Football Dataco, do not count.
Where does this leave protection of databases where the contents can neither be the subject of separate protection as copyright works nor rely on the sui generis database right?
A list of solicitors practising in London, for example, would be a purely functional database and would not attract database copyright protection. It might instead attract database right, but only if there was the necessary substantial investment in finding, checking or presenting the names and collecting them in the list. On the other hand, a list of ’My Top IP Lawyers in London’ would involve the necessary element of intellectual creation and incorporate the required personal touch for database copyright protection.
The CoA will now apply the ECJ’s ruling, although there is little doubt the effect will be that football fixture lists are no longer protected.
As well as ruling out a claim to database copyright protection, the ECJ confirmed that, given the harmonising nature of the directive, copyright protection as a literary work was no longer available. One thing is certain - the football leagues’ income stream will be significantly curtailed and other organisations that produce such lists may find themselves in a similar position.
