Intellectual creation and database right: English go to Europe again

The real reason why the Court of Appeal sits in threes:
one takes the penalties and the other two go in goal ...

While many of the English are not very fond of continental Europe right now, following Swiss-based Fifa's inexplicable to opt for the money rather than quality when rejecting England's rightful claim to host the football World Cup in 2018, 2022, 2026 and ever after, the IPKat notes that Luxembourg is still popular with members of the judiciary -- at least when it comes to football-related IP matters.

In April of this year Mr Justice Floyd gave judgment in Football Dataco & others v Brittens Pools and others [2010] EWHC 841 (Ch). noted here on the 1709 Blog.  In short, Brittens Pools, Yahoo! and two betting companies were sued for using the English and Scottish football league fixture lists without a licence. In these proceedings the judge was required to consider, as a preliminary issue, whether any copyright or database right vested in these fixture lists.

While football fixture lists do not easily fit the definition of a copyright-protected database which is the author's own intellectual creation, Floyd J held that the fixture lists were the product of 'selection or arrangement' of data

‘... the selection or arrangement required by Article 3(1) [of Database Directive 96/9] is not confined to selection or arrangement performed after the data is finally created. The process of selection and arrangement of the contents of a database can and often will commence before all the data is created. I see no reason why selection decisions made about the contents of the database in the course of arriving at the final version should not properly be described as selection or arrangement. To cut out from consideration these selection decisions, merely because they occur whilst the database is being created, seems to me to be arbitrary, and conceptually fraught with difficulty. Nevertheless it is necessary to focus on skill and labour which is actually concerned with selection and arrangement, and to exclude that which is not.’

The selection and arrangement here involved the author’s judgment, taste or discretion. list makers on the basis that the author had made a sufficient number of non-deterministic choices. There was thus a copyright-protected literary work consisting of a database.  There was however no sui generis database right: in Floyd J's opinion these lists were not protected since, while there had been investment in creating the data, contents of the lists, there was no additional investment in ‘obtaining, verifying or presenting’ the data content: the purpose of the right was to promote investment in systems for storing and processing existing information, not the creation of materials capable of being stored.  Finally Floyd J considered that there was no basis on which the fixture lists could attract copyright protection beyond the selection and arrangement of data.

On appeal [not yet available on BAILII, but you can read it here till it is], the Court of Appeal this morning decided to make a reference to the Court of Justice of the European Union of two questions regarding the interpretation of Article 3 of the Database Directive, since the court was unpersuaded by the claimants' assertion that its meaning was acte clair.   Refreshingly breaking with the tedious tradition of asking questions so long and convoluted that (i) no ordinary mortal can understand them and (ii) the Court of Justice is tempted to substitute its own questions instead, the judges (Lords Justice Jacob, Hooper and Rimer) posed the following:

1. In Article 3.1 of Directive 96/9 ... 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?

The IPKat says, hang around for the best part of two years and you'll discover the answer.

Cats and football here, here and here