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Football Dataco questions for ECJ

Neutral Citation Number: 

Case No: A3/2010/1381/1382/1389/1432
The Hon Mr Justice Floyd
[2010] EWHC 841 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/12/2010

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(1)    Football Dataco Ltd
(2)    The Football Association Premier League Ltd
(3)    The Football League Ltd
(4)    The Scottish Premier League Ltd
(5)    The Scottish Football
(6)    PA Sport UK Ltd

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(1)    Stan James (Abingdon) Ltd
(2)    Stan James plc
(3)    Enetpulse APS

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James Mellor QC and Lindsay Lane (instructed by DLA Piper UK LLP)
for the Respondents/Claimants/Cross-Appellants
Richard Meade QC and Philip Roberts (instructed by Olswang)
for the Defendants/Appellants/Cross-Respondents

Hearing date: 25 November 2010
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Lady Justice Jacob:

1.                  The claimants allege that between them they own rights, of one type or another, in the football fixture lists of English and Scottish leagues.  The defendants need to use those lists in the conduct of their businesses.  They say they are entitled so to do without paying because the law does not create rights of any of the claimed types.   They concede that if there were any such rights, the claimants would own them.
2.                  The three sorts of right claimed are:
(1)      A database “Sui Generis Right” pursuant to Art. 7 of the Database Directive (96/9/EC) (“the Directive”);
(2)      A copyright pursuant to Art. 3 of the Directive (an “Art.3 right”);
(3)      A copyright under English statutory copyright law which, it is said, can subsist even if neither of the first two types subsists.
The facts
3.                  The Judge made findings of fact as to how the various Fixture Lists are created. Although he had to consider each list separately and the details of preparation of the lists differed, in the end nothing turned on the differences.   When directly challenged as to whether there could be different answers for different Lists, the best that Mr Meade QC for the defendants could say was the Scottish lists involved more use of a computer and less individual input than the English lists.
4.                  The detailed findings of the Judge are at [9-22] of his Judgment [2010] EWHC 841 (Ch)] for the English Lists.    We do not repeat them here.  In summary, although the author (a Mr Thompson) has to work within certain rules (e.g. each team must play each other twice, once at home, once away, there shall not be three consecutive home or away matches, matches are mainly at weekends in the football season and so on) the process is far from purely mechanistic.   The Judge’s conclusions were as follows:
[41]      I conclude that the process of preparing the Fixture Lists, whether in England or in Scotland remains one which involves very significant labour and skill in satisfying the multitude of often competing requirements of those involved.  Mr Meade was obliged to accept in the light of the evidence that the process was not entirely deterministic. 
[42]      The process is therefore not one where everyone would come up with the same answer.  Some solutions will better accommodate the requirements of the clubs and rules than others.  The more sophisticated the compilation process, the more permutations it will be able to consider and the more requirements it will be able to satisfy.  Judgments have to be taken as to the relative importance of certain rules in comparison to others.  On occasions rules will have to be broken.
[43]      This work is not mere “sweat of the brow”, by which I mean the application of rigid criteria to the processing of data.  It is quite unlike the compiling of a telephone directory, in that at each stage there is scope for the application of judgment and skill.  Unlike a “sweat of the brow” compilation, there are some solutions which will simply not work, and others which will be better.  Mr Thompson explained that it might be the case that the computer would say that there was no solution for a given set of constraints.  The quality of the solution depends in part on the skill of those involved. 
[44]      Mr Meade suggested that although the exercise was not in fact completely computerised, the exercise was one which could be performed by a computer.  Mr Thompson did not accept this.  There were aspects where the computer is used as a tool (more extensively in the lists prepared by Mr Stone and Optimal [the Scottish lists]), but the use of the computer does not eliminate the use of judgment and discretion.
5.                  So the preparation of the lists involves considerable judgment and skill of its creator.   The Judge concluded that the quantum of creative work was substantial, much more than, for instance, anything involved in the compilation of several recordings on a CD, the example referred to in Recital 19 of the Directive.
The Legislation
6.                  The Directive has been implemented into English law by amendment of the Copyright Patents and Designs Act 1988.   The Judge sets out the details of the complicated, and to our minds, unhelpful, way it has been done.   No-one suggests the amended Act means anything different from the Directive.   So it is easier and safer to work directly from that.   We can but express the hope, yet again (see e.g. CCE v Century Life, CA 19th December 2000) that when a Directive is prescriptive as to the detail of its implementation, its implementation should simply consist of a short Statutory Instrument (or where necessary Act of Parliament) saying something like “the following provisions of Directive … are hereby made part of UK law and any prior provision of law is hereby repealed to the extent, and only to the extent, that it is inconsistent with the Directive”
The Proceedings and contentions so far
7.                  The trial Judge held that on the facts that the law does create an Art 3 right, but not either of the other two claimed rights.   The claimants say, if he was wrong about the Art 3 right, then an Art. 7 right subsists, failing that an English copyright subsists.
8.                  We held a short hearing.   On behalf of the claimants it was contended that the question of subsistence of the Art. 3 right was acte clair in their favour.  We were unpersuaded of that and said so.  Neither side wanted a detailed ruling on the point.
9.                  It followed, the question being of considerable importance within the EU and it being necessary for our decision, that the thing to do was to refer appropriate questions to the CJEU about Art 3.  Later we will explain why we are referring the Art 3 question.  Before we do so, there is some preliminary matter to consider.
A Sui Generis Right?
10.              As to the claimed Sui Generis Right we, like the Judge, thought the point was acte clair.   The Court has made it plain that no such right subsists in things like football fixture lists.  It did so in Fixtures Marketing v Oy Veikkaus  Case C-46/02 [2004] E.C.R. I-10365;  Fixtures Marketing v Organismos Prognostikon etc., Case C-444/02 [2004] E.C.R. I-10549; and Fixtures Marketing v Svenska, Case C-338/02 [2004] E.C.R. I-10497.
11.              The Court ruled in each of the three cases that:
'investment in ... the obtaining ... of the contents' of a database in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organising football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.
12.              Accordingly we see no point in referring questions about Art. 7, as was proposed by the claimants.  Behind the proposed questions was their hope that the Court would re-consider its earlier rulings.   It was suggested these caused some consternation when they were made and so the court might be open to re-consideration.  But given that the rulings were of the Grand Chamber (not merely a chamber) and were comparatively recent, it is inherently improbable that the Court would change its mind.  So there is no point in asking it to re-consider the position.  If there is to be a change in the law it will be a matter for the legislator.
A database copyright independent of the Directive?
13.              As to whether, if there is no right in a database of either type provided for by the Directive, there can nonetheless be a national copyright, we thought the position tolerably clear.    The claimants say, correctly, that prior to the Directive, English copyright law conferred copyright on compilations consisting of data solely created by the compiler such as a fixture list or TV listing.  They suggest that the Directive permits such a type of copyright to subsist in works created after its implementation.  They say that the Directive merely created two additional rights¸ Art. 3 copyright and the Art. 7 sui generis right.   They rely particularly on recitals 18, 26 and 27:
i)                    Recital 18 contains the words “whereas the protection of databases by the sui generis right is without prejudice to the existing rights over their contents”.
ii)                  Recital 26 says:
Whereas works protected by copyright and subject matter protected by related rights, which are incorporated into a database, remain nevertheless protected by the respective exclusive rights and may not be incorporated into, or extracted from, the database without the permission of the rightholder or his successors in title.
iii)                Recital 27 says:
Whereas copyright in such works and related rights in subject matter thus incorporated into a database are in no way affected by the existence of a separate right in the selection or arrangement of these works and subject matter in a database;”
14.              We very much doubt that this wording has the effect contended for.   If the claimants are right, one of the key objects of the Directive, harmonisation across the EU of laws as to the subsistence of rights in databases, would not have been achieved.  It seems to us that the recitals relied upon are not at all about preserving national laws as to subsistence of copyright in databases: they are about, and merely about, making it clear that any copyright in any work included within a database, continues unaffected by the fact that it is included in a database.  So, for instance, the fact that rights are created in a database of different poems (a classic example is Palgrave’s Golden Treasury), does not in any way affect any copyright in the individual poems selected for the database.
15.              However there is, perhaps, just enough for a lingering doubt on the point.  To make sure that it does not resurface following answers from the Court on the main, Art. 3, question, we have decided to include a short question about it.
The Art. 3 Point: 
                        The rival contentions
16.              The facts are that creation of the Lists does involve considerable skill and judgment as well as labour and is not a merely mechanical process.    But is that skill and judgment of the right kind for the purposes of Art. 3?   The inquiry is whether the List is one which by reason of the selection or arrangement of their contents, constitutes the author’s own intellectual creation. The claimants contend that the intellectual creative work involved is of this kind:  that the creators of the fixture lists do select and arrange the contents of the List within the meaning of the Article.  
17.              To elaborate, the claimants say there is data, consisting of all the matches to be played.   What the authors do is to arrange that data into the Fixture List.  Alternatively, say the claimants, the work involves selecting data in the sense of selecting the matches to be played on a particular day.   And, they say, that work is the creative and individual work of the author.  That is enough.
18.              The Defendants contend not so:  that Art. 3 is limited to selection or arrangement of pre-existing data.  So, they say, the intellectual creation of Mr Thompson and the other authors, does not involve the right kind of intellectual creation.   To say that the authors are selecting or arranging that data is entirely artificial.   Giving a date to a match (Arsenal v Chelsea on 26th April) is creating data, not selecting or arranging it.
Why we think a reference is necessary
19.              We can see force in the contentions of both sides.   If the claimants are right, then virtually all of the effect of the Court’s earlier rulings about Art. 7 will be by-passed.  (It is indeed odd that Art. 3 was not relied upon in that litigation).  Not only will there be rights in Fixture Lists, but it would probably follow that there will be rights in things like TV Listings (the creation of which involves a “great deal of time energy and skill”, see the undisputed findings of fact in Independent Television Publications and the BBC v Time Out [1984[ FSR] 64 at 66).    The Commission’s First Evaluation of the Directive contemplates that there are no rights in such listings, although the basis for this may be a false assumption that not much effort or creativity (other than a purely mechanistic, “sweat of brow” kind) is involved.
20.              On the other hand the use of considerable skill and judgment in creating the Fixture Lists is arguably “arranging or selecting data” (i.e. the matches to be played) as well as creating data (fixing the dates).
21.              There is another point calling for consideration. There is nothing “artistic” about the skill, labour and judgment used, considerable though it is.  A degree of “artistic skill” was a criterion for copyright under some prior national laws.   But Art 3 does not on its face call for anything artistic.  It requires that the work of selecting and arrranging be the “author’s own intellectual creation.”  Whilst that would exclude mere mechanistic “sweat of brow” work such as that involved in compiling a telephone book (in the old, pre-computer, days that was a lot of work), it is far from self evident that other, truly creative but not artistic, work is excluded. Quite what the meaning and limits of “author’s own intellectual creation” is also, we think, a question calling for an answer. 
The Questions
22.              There was quite a bit of dispute about the questions to be asked.   We believe they should be as short and simple as possible.   On that basis we have decided that the questions should be as follows:
1.         In Article 3.1 of Directive 96/9/EC on the legal protection of databases what is meant by “databases which, by reason of the selection or arrangement of their contents, constitutes the author’s own intellectual creation” and in particular:
(a) should the intellectual effort and skill of creating data be excluded?
(b) does “selection or arrangement” include adding important significance to a pre-existing item of data (as in fixing the date of a football match);
(c) does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?
2.         Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?
Lord Justice Hooper:
23.              I agree.
Lord Justice Rimer:
24.              I also agree.

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