Database defeat for Dataco

Despite his years of experience to the contrary,
the judge still hoped against hope that
cases with the word "football" in their name
might have something to do with football
for a change ...
Judgment has just been given 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't see 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?’
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".
Did the Court of Justice agree? It appears so, though the Court did so in rather more words and in substantially broader terms.  After summarising with apparent approval its earlier rulings in Fixtures Marketing and British Horseracing Board, the Court left little room for speculation as to what the outcome might be.  The operative part of its 53-paragraph decision reads thus:
"1. Article 3(1) ... must be interpreted as meaning that a ‘database’ within the meaning of Article 1(2) of that directive is protected by the copyright laid down by that directive provided that the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author, which is a matter for the national court to determine. [In other words, Article 3(1) means pretty much what it says it means]

As a consequence:

– the intellectual effort and skill of creating that data are not relevant in order to assess the eligibility of that database for protection by that right;

– it is irrelevant, for that purpose, whether or not the selection or arrangement of that data includes the addition of important significance to that data, and

– the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.

2. Directive 96/9 must be interpreted as meaning that, subject to the transitional provision contained in Article 14(2) of that directive, it precludes national legislation which grants databases, as defined in Article 1(2) of the directive, copyright protection under conditions
which are different to those set out in Article 3(1) of the directive".
The IPKat is fascinated by the bit about "the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains". After all, it is only a week since the Red Bus copyright seminar, at which he learned that the significant labour and skill required in manipulating photos by means of Adobe PhotoShop software was, it seems, an expression of originality.  Presumably the courts will have to draw the line on a case-by-case basis between significant labour and skill that justifies protection and that which doesn't.

Merpel notes the bar on the provision of copyright protection under conditions other than those laid out in Article 3(1) of the Directive.  There is no bar on non-statutory protection, she assumes, through an action for unfair competition where the facts support it.
Database defeat for Dataco Database defeat for Dataco Reviewed by Jeremy on Thursday, March 01, 2012 Rating: 5


  1. I don't agree with this conclusion on the judgment - the Court is essentially saying whether fixture lists meet the necessary standard of originality is a matter for the national court.

  2. @Anonymous -- the CJEU can't really say otherwise since meeting the standard of originality is a question of fact which only the national court can establish.

  3. I think this is a victory for Dataco. Clearly.

  4. The point before the European Court was the eligibility for copyright of a fixture list.The defendants argued that if the sui generis right is not available, then copyright could not, by definition be available. The Court rejected that argument and then went on to create a test of eligibility for copyright for fixtures lists (but also any listing)and true it will be for the national court to determine this. The Court also gave Dataco the benefit of a transitional provision which it would also be for the national court to determine whether it is relevant. Unlike the AG -the Court did not go so far as to rule on the facts which the AG appeared to do.

  5. I think I see the problem. It lies in the quaint English usage of the word “fixture”. There’s a legal meaning, a common place meaning and then last and deservedly least the uniquely English usage in lieu of the much more sensible and less ambiguous word “game”.

    See OED:
    1. a.1.a The action of fixing; the process of fixing or settling, or of becoming fixed or settled. ? Obs.

    b.1.b The condition of being fixed; fixedness, fixity.

    c.1.c concr. A means of fixing or setting fast.

    2. a.2.a Anything fixed or securely fastened in position; anything made firm, stable, or immobile.

    b.2.b U.S. in pl. Appendages, apparatus, ‘fixings’.

    3.3 Law. In pl., ‘Things of an accessory character annexed to houses or lands, which become, immediately on annexation, part of the realty itself’ (Wharton Law Lex.).

    4.4 A person or thing permanently confined to or established in a particular place or position.

    5.5 Athletic and Sporting, rarely Commercial. An appointment or date for a meet, race, etc.; hence, the meet,

  6. What I found remarkable about this case is that CJEU says that there is only single European notion of the author´s own intellectual creation (originality standard)- regardless of the type of a work.

    I blogged about that here.

  7. The other thing that has gone unnoticed is that the UK gets to keep its old "compilation" copyright which the CDPA retained cos the UK in its wisdom so wished(which now seems very wise given the narrow approach to Directive 96/9) provided your compilation is not a database as defined.

    But the question that arises is what standard of originality can be attributed to a "compilation". As long as it is a "work" -it will have to be the Infopaq standard but it can be arranged in any old manner i.e. no requirement to meet the definition of a database.


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