Football match lists – copyright penalty

Last week judgment was given in Football Dataco & Ors v Brittens Pools & Ors. Brittens Pools, Yahoo! and two betting companies had been sued for using the fixture lists of the English and Scottish leagues without a licence. Were the lists protected by database copyright, database right or non-database copyright?

IF YOU DON’T WANT TO KNOW THE RESULTS, LOOK AWAY NOW.

Database copyright: yes
Database right: no
Non-database copyright: no

Database copyright - s. 3(1)(d) CDPA

This protects databases that constitute the author’s own intellectual creation by reason of the selection or arrangement of their contents.

Football fixture lists do not easily fit the definition of a database. Usually a database would be the selection and arrangement of pre-existing chunks of information but the makers of fixture lists also create the chunks of information (X plays Y on date, home/away). The list makers select teams and arrange them to create chunks of information but they don’t select or arrange the chunks beyond listing them in chronological order. However Floyd J held that:

‘In my judgment the selection or arrangement required by Article 3(1) 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.’

Did the lists constitute ‘the author’s own intellectual creation’? Floyd J determined that the test was whether the selection and arrangement involved the author’s judgment, taste or discretion. How much of this would be required? A recital in the Database Directive might imply a high threshhold, saying that making a compilation of songs on a CD would not meet the conditions for copyright protection. On the other hand, a 2005 German database copyright judgment ‘plainly takes the view that not very much room for manoeuvre is required to allow for the creation of a copyright work’. The list makers, Floyd J held, had made a sufficient number of non-deterministic choices.

Database right – s. 13 Database Regulation

This protects a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database. Floyd J said that the lists were not protected for the same reasons the ECJ had given in the three Fixtures Marketing football lists judgments of 2004. Although there had been investment in creating the contents of the lists, there had not been any additional investment in ‘obtaining, verifying or presenting’ that contents. 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.

Non-database copyright in a literary (written) work

Floyd J couldn’t conceive that the fixture lists attracted copyright protection beyond the selection and arrangement of data.