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Football Dataco Limited and others –v- Yahoo! UK Limited and others [2010] EWHC 841

Written by Paul Bicknell on 21 December 2011

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Background

The claimants claimed to have various rights in football fixture lists. However, the defendants needed to use those lists to carry out their businesses. The claimants claimed rights pursuant to articles 3 and 7 of the Database Directive 96/9 EC ("the Directive"). The claimants also asserted that copyright under England and Wales subsists should rights under articles 3 and 7 not subsist.

How the lists are created

Mr Meade QC appearing for the defendants submitted in short that the Scottish lists involved more computer input than individual input as opposed to the English lists. At first instance the court found that the preparation of both lists involved a great deal of labour and skill, but was it the "right" labour and skill for copyright purposes?

Matters at issue

The judge, at first instance, found that article 3 of the Directive does create a right, however, these are rights not claimed. The claimants submitted that if the judge was wrong about article 3 then a right under article 7 would subsist failing which a right under national law would subsist.

A short hearing was held in which the claimants submitted that the issue of subsistence under article 3 was acte clair (act clair means that the point is clear and does not require a reference to be submitted to the European Court of Justice.) The court was not persuaded by this. The court went on to consider that a reference is appropriate.

The court went on to consider a number of issues before posing the questions for reference.

A Sui Generis right?

The court stated that it is clear football fixtures do not attract such rights: Fixtures Marketing v Oy Veikkaus Case C-46/02 [2004] ECR I-10365; Fixtures Marketing v Organismos Prognostikon etc Case C-444/02 [2004] ECR 1-10549; and Fixtures Marketing v Svenska Case C-338/02 [2004] ECR I-10497.

The court was of the view therefore that a reference regarding article 7 would not be appropriate, but rather it would be a matter for the legislature if it wished to alter the above decisions. It was also suggest that behind the proposed reference was hope that the above decisions would be revisited.

An independent database right?

The court agreed with the claimants' submissions that prior to the Directive English copyright law recognised subsistence of copyright in compilations of data that was solely created by the complier, such as a fixture list. However, the court doubted whether two additional rights, Article 3 (copyright) and article 7 sui generis right had been created. In support of their arguments the claimants relied on recitals 18,26 and 27 of the Directive. As Lord Justice Jacob put it: "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."

However, the court found that there was "...perhaps, just enough of a lingering doubt on the point...we have decided to include a short question about it."

Article 3: the issues

The fact that "considerable skill and judgment as well as labour" has been exerted in relation to the compilation of the fixture lists was not at issue, the issue was whether the correct skill, labour and judgment had been exerted.

The claimants submitted that there is data in the form of the matches to be played and that sufficient labour, skill and judgment is exerted in the selection and arrangement of those fixtures.

The defendants disagreed submitting that: "Art.3 is limited to selection or arrangement of pre-existing data” and therefore the creation does not involve the right kind of labour skill and judgment becuase such selection or arrangment is "artificial".

The court discussed the above issues as follows:

"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.

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).

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 arranging 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 court set out the following questions:

"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, 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?"

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