Amanda Carpenter is a JD Candidate at Osgoode Hall Law School.
In Football Dataco Ltd & Ors v Brittens Pools Ltd & Ors the England and Wales High Court has recently ruled on the copyright status of annual football fixtures lists produced and published for the purposes of the English and Scottish Premier leagues and football leagues. To provide a definition, football fixtures are essentially football matching lists and contain the dates, times, and team pairings for the various matches in football leagues.
The defendants who consisted of betting companies as well as Yahoo! UK Limited were alleged in this case to have used the fixture lists without a licence. The court addressed the following possibilities for the protection of the lists: (i) copyright as a database under section 3 and 3A of the Copyright Designs and Patents Act 1988 (ii) the sui generis database right pursuant to the Copyright and Rights in Databases Regulations 1997 or iii) copyright irrespective of whether they are a database.
In regards to the first issue of whether the fixture lists were original literacy works under section 3A(2) of the Copyright Designs and Patents Act 1988, the court must: i) Identify the data which is collected and arranged in the database, ii) Analyse the work which goes into the creation of the database to isolate that work regarded as selection and arrangement, iii) Ask whether the work of selection and arrangement was the author’s own intellectual creation and in particular whether it involved the author’s judgment, taste or discretion, and finally iv) Ask whether the work is quantitatively sufficient to attract copyright protection. In regards to the first part of the test, the data included dates, times and team pairings. In regards to the second part of the test, the work regarded as selection and arrangement was the exercise of choice over the dates and the teams to play on those dates. For the third part of the test it was determined that this selection and arrangement was the author’s own intellectual creation since there were numerous stages in the process of allocation of matches to dates, and in the selection of the dates themselves where judgment and discretion had to be exercised. As for the fourth part of the test, Floyd J had no doubt that the amount of selection and arrangement work in producing the lists was sufficient for copyright protection. Thus the fixture lists were found to be the subject of database copyright.
The court then discussed the reasons for why the fixture lists did not qualify for protection either under a sui generis database right or by copyright irrespective of whether it was a database. As to whether there had been investment in obtaining, verification or presentation and thus a sui generis database right it was determined that the separate work which went into obtaining, verifying or presenting the data in the fixture lists was trivial. Thus the fixture lists were not protected by the sui generis right. This was because the decisions that the claimants were involved in dealt primarily with creating the data. The third issue was whether copyright existed in the fixture lists irrespective of whether it was a database. The judge dismissed this saying that he did not see the possibility of the fixture lists attracting copyright by any way other than by virtue of the collection and arrangement of the data contained in them as a database.
Of particular interest in this case is what the judge decided would constitute the author’s own intellectual creation, which was that the author must have exercised judgment, taste or discretion in selecting or arranging the contents of the database. The purpose behind Section 3 of the Copyright Designs and Patents Act 1988 that establishes copyright protection in databases is to provide protection for compilations which involved an element of creativity, not for non-creative compilations, sometimes referred to as “sweat of the brow” compilations. That is, a list of all Acts of Parliament in the last 100 years would not qualify for copyright protection under Section 3. A passage from a 2005 German database copyright judgment that greatly assisted the judge in deciding what constitutes an author’s own intellectual creation was quoted. This quote distinguished between a deterministic selection and arrangement and one that allows for individual creative work: “A selection or organisation that anyone would undertake in a particular manner does not constitute individual creation. If the selection or organisation is determined by the nature of the thing or is predetermined by purposefulness or logic, then there is no room for individual creative work…”
In conclusion, this decision holds that football fixture lists are subject to database copyright under section 3 and 3A of the Copyright Designs and Patents Act 1988 since their creation involves a sufficient amount of creative selection and arrangement. This decision will be welcomed by UK football organisations and other sporting bodies that compile their fixtures in a similar way to that of the English and Scottish football leagues and provides more certainty in this area of copyright law.
