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Copyright for Football Fixture Lists – AG Opinion on Database Directive

AUTHOR(S):
PRACTICE AREA GROUP: Technology and Commercial Contracts
DATE: 10.02.2012

Football Dataco Ltd and Others v Yahoo! UK Ltd and Others  was referred to the ECJ by the UK Court of Appeal.  The Court queried whether English and Scottish football fixture lists are protected by database copyright under Directive 96/9/EC (the “Database Directive”).  In December 2011, Advocate General Mengozzi (the “AG”) delivered an opinion on the interpretation of Article 3 of the Database Directive and whether there is copyright in football fixture lists.

Background

Prior to the implementation of the Database Directive, databases were protected in the UK under the Copyright, Designs and Patents Act 1988 (the “1988 Act”).  The Database Directive was passed to harmonise the legal protection given to databases across the Member States. 

Dataco was owned by the second and third claimants, who organise professional football matches in various leagues and competitions in England and Scotland.  Dataco owned a database called "Football Live" which consisted of information such as scores, penalties and player substitutions, which was available to customers online.  The first defendant had a website called "Sport Live Data" which competed with the claimants.  The claimants argued that the defendants had copied the fixture lists from Football Live in order to compile data for Sport Live Data.

The claimants alleged that the defendants use of the fixture lists breached the following provisions:

1. Article 7 of the Database Directive, the sui generis database right (this right may arise where a substantial investment has been needed to build up the database);
2. Article 3 of the Database Directive, copyright in a database; and
3. Copyright under the 1988 Act.

The English High Court found that the fixture lists were protected under Article 3 of the Database Directive, but that the claimants did not have rights under Article 7 or under the 1988 Act.  Both parties appealed the decision to the Court of Appeal, where a preliminary reference was made to the ECJ.

Opinion

Firstly, the AG noted that the ECJ had previously held that fixture lists cannot be protected under Article 7 of the Directive as the entry of data relating to each match into an ordered list, does not require any substantial investment in the obtaining, verification or presentation of the contents.
  
In relation to the Directive itself, the AG stated that it protects the creation of databases, but it does not deal with the protection of the data itself.  The AG proceeded to examine the claimant’s rights under Article 3.  This provides copyright in respect of “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation”.  The AG commented that protection under this Article focuses on the structure of the database, that is the way in which it has actually been put together, through the selection of the data to be included or the way in which it is presented.  Article 3 only protects the copyright in the “external” aspect of the database, or its structure.  The AG noted that the defendants used the data developed by the claimant and not the form/structure in which the claimant makes that data public.   

The AG opined that the ECJ should state that a database can be protected by copyright under Article 3 only if it is an original intellectual creation of its author.  For the purpose of that assessment, the activities involved in the creation of the data cannot be taken into account.  The AG stated that in the case of a football fixture list, the determination of all the elements relating to each match is a data creation activity and was not an original intellectual creation of its author.  The claimants did not select or arrange the data in a way to permit protection under Article 3.

In relation to whether the claimant could avail of additional protection under national law, the AG found that the Directive has completely harmonised the protection of databases by copyright and therefore further rights cannot be conferred at national level.

Although the AG's recommendation is not binding and we still await the ECJ's formal decision, if the ECJ agree with this position, it will not be welcomed by football organisations who derive significant income from licensing their fixture lists.

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