A matter of Opinion -- or are we all agreed? AG advises in Football Dataco case

The IPKat arrives at the Court of Justice, ready
to give the judges the benefit of his opinion
Some of us foist our opinions on to others whether they like it or not; others -- and the IPKat, Merpel and friends fall within this category -- are happy to share their opinion with those who opt to receive them by visiting their weblog or subscribing to their emails. Some really lucky people get paid for giving their opinions, whether anyone pays attention to them or not. One of them is Advocate General Mengozzi of the Court of Justice of the European Union: the IPKat naturally pays avid attention to him, though naturally not everyone else does.

Today AG Mengozzi shared his opinion with us today in Case C‑604/10 Football Dataco Ltd, Football Association Premier League Ltd, Football League Limited, Scottish Premier League Ltd, Scottish Football League and PA Sport UK Ltd v Yahoo! UK Limited, Stan James (Abingdon) Limited, Stan James PLC and Enetpulse APS, another football-related reference for a preliminary reference from the Court of Justice.

What was this all about? In simple terms, Football Dataco (and others) ran the English and Scottish football leagues. In doing so, they drew up and made public their lists of all the fixtures to be played each year in their respective leagues. Yahoo! UK (and others) used those schedules to provide news and information and in organising betting activities. Football Dataco and their friends couldn'tsee why Yahoo and their friends shouldn't pay for the rights to use the football fixture lists which they had compiled -- and from which the others were making all that lovely money. But were Football Dataco and their friends entitled to claim protection for thir fixture lists under the Database Directive (Directive 96/9), claiming either copyright or the ‘sui generis’ right?

The Court of Appeal, England and Wales, agreed that there was no chance of protection based on the ‘sui generis’ right, since the Court of Justice had killed that option stone-dead following its rulings in the Fixtures Marketing and British Horseracing Board references. However, there was still a racing chance that this case involved a database that involved the author's own creative effort and which was therefore protected as a regular work of authorship. Accordingly the Court of Appeal turned to its judicial cousins in Luxembourg and asked them the following questions:
‘(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, constitute 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?’
Today the Advocate General proposed the following answers:
"(1) A database can be protected by copyright, for the purposes of Article 3 of Directive 96/9 ... 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. In the case of a football fixture list, the determination of all the elements relating to each single match is a data creation activity.

(2) Directive 96/9 precludes national law from conferring copyright protection upon a database which does not meet the requirements laid down in Article 3 of the Directive itself".
In other words, reading  between the lines and drawing such inferences as may be contained with the verbal formula in which the juridical analysis is encapsulated, the AG is saying, "no way is the Directive going to give you any protection for your creation of facts, even if you can make money out of them and can't stop others doing so".  This, says the IPKat, doesn't mean that the creation of information contained in databases can't be protected: it only means that, assuming the Court adopts the AG's position, the data can't be protected by database rights. It doesn't mean that there isn't some other legal remedy floating around in the legal ether that can't be summoned up, and this Kat would like to see how some of the EU's unharmonised relief against acts of unfair competition might just measure up when an appropriate set of facts presents itself.

The full version of the illustration above, 'Character Cat Lawyer' by Rosalia Spollore, can be purchased from The Gift Co here
A matter of Opinion -- or are we all agreed? AG advises in Football Dataco case A matter of Opinion -- or are we all agreed? AG advises in Football Dataco case Reviewed by Jeremy on Thursday, December 15, 2011 Rating: 5


  1. The AG's analysis appears to be consistent with that of the High Court in the little-noticed decision in Forensic Telecommunications Services v West Yorkshire Police [2011] EWHC 2892 (Ch).

  2. The difficulty with the AG's Opinion is that he appears to be directing the Court to usurp the role of the national court and find on the facts in relation to these databases. He even goes so far as to say there is a "misunderstanding of the facts". The Court should limit itself to the questions, what the AG terms answer in the "abstract" then send it back to the national court.

  3. If I understand correctly, the AG is saying that the UK cannot protect databases by copyright on the basis of anything less than droit d'auteur originality. It would follow that, to the extent the 1988 Act does so, the UK is in violation of its obligation to implement the Directive.

    The AG's conclusion that the Directive pre-empts more protective national law is quite unnecessary. Art. 14 of the Directive does not so provide. The AG is assuming that when the recitals refer to "differences" affecting interstate trade would include Directive-plus as well as Directive-minus protection of databases. Hard to see how there would have been a legal basis for a Directive that sought to rely on interstate trade to reduce protection in the common-law Member States.

    Perhaps we are drifting to a US-style pre-emption doctrine in which it is assumed that when the EU has spoken the States are silenced...


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