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This note was drafted as a comment on Football Dataco Ltd and others v Yahoo! UK Limited Case C-604/10, a case that was referred to the Court of Justice of the European Union for a preliminary ruling by the Court of Appeal for England and Wales in December 2010. While it usually takes in excess of two years from initial reference to final ruling, this case -- probably on account of its relative legal simplicity -- has positively raced along. The Advocate General’s opinion was delivered 15 December 2011 -- which would normally indicate a full judgment about six months later, leaving sufficient time for legal commentators to write on the opinion and get it published ahead of the ruling.
Football Dataco has however maintained its velocity, since we have learned today that the ECJ expects to deliver its full decision on 1 March, well ahead of expectations. Under normal circumstances a Current Intelligence comment on the Advocate General's opinion would not be published until after the court had delivered judgment, with the result that it would be of largely historical interest by the time it came to be published. However, with the ruling still some ten days away, JIPLP is delighted to bring this item to your attention while it is still hot. We hope you will enjoy it.
"Database copyright does not protect fixture list data, says AG
Football Dataco Ltd and others v Yahoo! UK Limited Case C-604/10, Court of Justice of the European Union (ECJ), Advocate General’s opinion of 15 December 2011
The AG interprets the Database Directive narrowly, denying database copyright to data within a database and reserving this right to the structure rather than the contents of a database.
In 2004, producers of football fixture lists and producers of lists of horseracing runners and riders failed to persuade the ECJ as to the subsistence of sui generis database rights in such lists under the Database Directive 96/9 (see British Horseracing Board Ltd and Others v William Hill Organization Ltd (C-203/02)  I-10415; Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou AE (OPAP) (C-444/02)  I-10549; Fixtures Marketing Ltd v Oy Veikkaus Ab (C-46/02)  ECR I-10365). However, no attempt was made at the time to argue that database copyright which the Directive also attempted to harmonize might provide an alternative form of protection for exploitation of these databases.
In Football Dataco Ltd and others v Yahoo! UK Limited  EWCA Civ, the English and Scottish Premier and Football Leagues sought to rely on database copyright in a claim against Yahoo and others in relation to the latter’s use of their fixture lists. The Court of Appeal referred two questions to the ECJ: first, on the interpretation of Article 3(1) of the Directive, whether work involved in creating the fixtures could be classified as ‘selection or arrangement’ and hence qualify for database copyright protection and also on the interpretation of ‘author’s own intellectual creation’ (Article 3(1) provides that ‘databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation, shall be protected as such by copyright’); and secondly, on whether the Directive precluded national rights in the nature of copyright in databases other than those provided for by the Directive.
The FA Premier League, Scottish Premier League, and the English and Scottish football leagues (all applicants in the appeal from which questions were referred to the ECJ) arranged fixtures for the English and Scottish football leagues, and Football Dataco and another managed the rights on their behalf. Yahoo and the other defendants used the information in these lists to provide news and information and/or to organize betting activities. Football Dataco et al. alleged that this infringed their rights.
At first instance, on the preliminary issue of what rights existed in the fixture lists, Floyd J found that considerable skill and effort went in to preparing these lists in order to comply as nearly as possible with numerous requirements— for example that home matches should not be played on the same day by clubs in close geographical proximity and that only a certain number of consecutive matches should be played at home for each club. The court concluded that the fixtures schedule could not have been created by a computer, but took creative input.
Since fixture lists were previously refused protection under the ‘sui generis’ database rights, Football Dataco instead alleged database copyright infringement. Floyd J found that there was database copyright in the fixture lists but not ‘sui generis’ database right, nor any ‘national’ copyright (other than database copyright as provided for under Article 3 of the Directive).
Floyd J’s decision was appealed and the Court of Appeal then referred the two questions to the ECJ:
(1) When interpreting Article 3(1) of the Directive,In his Opinion, Advocate General Mengozzi proposes that the ECJ provide a preliminary ruling that:
(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)? and
(c) does ‘author’s own intellectual creation’ require more than significant labour and skill from the author, and if so what? and
(2) Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?
(1) A database can be protected by copyright, for the purposes of Article 3 of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases 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.Analysis
(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.
The AG first noted that one reading of the Directive is that ‘sui generis’ protection is regarded as a second-level protection, which can only apply to a database that does not possess the necessary originality to be protected by the copyright. If that were the case the fact that, in its judgments of November 2004, the ECJ ruled out the possibility of ‘sui generis’ protection (the ‘lesser’ protection) for football fixtures would mean that protection under the copyright (the ‘greater’ protection) was therefore automatically excluded. However, the AG said that careful examination of the Directive shows that such an interpretation is not correct and that the two types of protection must be regarded as mutually independent in all respects, a fact which all the parties who submitted observations in Football Dataco, including the Commission, appeared to accept.
The AG commented on the relationship between protection under database copyright and sui generis protection, stating that the object of the two types of protection was different. Database copyright protection focuses on the structure of the database, the way it has been put together through the selection of the data to be included or the way in which they are presented. Article 3(2) states that the copyright provided for in that article ‘shall not extend to [the] contents of databases, which can be protected by copyright autonomously, but are not protected by virtue of being entered in a protected database’.
Further, Recital 15 states that the copyright protection ‘covers the structure of the database’. In contrast, the ‘sui generis’ right protects the content, but protection is simply a right to prohibit extraction or re-utilization of the data contained in the database ‘that right is conferred not to protect the originality of the database in itself, but to compensate the effort expended in obtaining, verifying and/or presenting the data contained therein’.
However, the AG’s opinion was that the scope of protection of the Directive does not cover the creation of the data itself but just its collection, verification, and presentation, distinguishing between the time when the data were created (which the Directive does not concern) and the time when it was collected or developed (which it does concern and is relevant for the purposes of determining whether the database is eligible for protection).
The ECJ drew these distinctions when it considered ‘sui generis’ rights in 2004, but the AG’s opinion is that ‘these are considerations which concern more generally the very concept of a database for the purposes of the Directive. The Directive protects the creation of databases but not the data itself. The objective of the Directive is to encourage the creation of systems for collecting and consulting information not the creation of data’.
Thus the effort expended in the creation of the data cannot be taken into account for the purposes of assessing eligibility for protection under the copyright, just as it cannot be taken into account for assessing ‘sui generis’ right. That is not to say that attribution of additional specific characteristics to an item already entered into a database could not amount to ‘selection and arrangement’ sufficient to qualify for copyright protection under Article 3. Rather, adding a date to a selection of two teams in this case was not sufficient, said the AG. The AG’s opinion was that, to draw this conclusion, as he felt the court of first instance had done, was to make a decision based on a mistaken premise; all details relating to each match in a given league must be regarded as having been fixed by the time they are entered in the database. This is all data creation and therefore not protected under the Directive. Thus, all the evidence on the skill and judgment on creation of fixtures put forward before Floyd J is irrelevant.
The individual components of a database must have autonomous informative value (Fixtures Marketing). Generic lists of teams, dates, and times cannot be regarded as genuinely ‘informative’, ‘only the set of details identifying each individual match can have such value.’ However, the AG did not rule out the possibility that there could be circumstances in which important significance would be added to the existing data by entering them into a database. This would be ‘arrangement of contents’ which is properly protected by database copyright—and which the database ‘adds’ to the data.
In considering the meaning of ‘intellectual creation’, the AG noted the tendency among common law countries for the decisive criteria in determining the subsistence of copyright to be the application of ‘labour, skills or effort’ whereas ‘in countries of the continental tradition’ there must be an element of creativity or expression of the creator’s personality. He felt that the phrase ‘intellectual creation’ echoed the continental tradition. Although the phrase could not be defined in general terms and assessments of ‘intellectual creation’ are for the national courts to make on an individual basis, the AG did observe that a work will reflect the personality of the author who is able to make free and creative choices in the production of the work. The AG’s opinion was that database copyright required something ‘creative’, not just skill and labour.
‘Mechanical’ efforts are rewarded by the sui generis rights along common law lines, but for database copyright the ‘continental tradition’ applied. The necessary originality would also be absent if the features of a work are predetermined by its function.
The AG gave as an example of the sort of creative touch which would attract database copyright as using ‘sufficiently original features’ in putting it together eg: ‘the use of colours or other graphic elements’. The AG opined that this ‘could certainly qualify for copyright protection under the Directive’. However, it would only be this form of representation that was protected, ‘not the data represented’.
The AG dealt swiftly with the question as to whether any other form of copyright could be deployed to protect databases, concluding that they could not. In support of this he noted Recitals 3 and 12 to the Directive (these reflect the EU legislature’s intention that the directive completely harmonize the protection of databases by copyright so that further rights cannot be conferred at the national level) and Article 14 which establishes transitional arrangements for databases formerly protected by copyright under national rules which do not meet the requirements for copyright protection under the Directive. Such arrangements would make no sense, said the AG, if any ‘national’ rights were intended to continue.
If the CJEU follows the AG’s Opinion, those creating as well as exploiting data such as fixture lists, TV listings and telephone directives will have little left in the way of rights over such data. They will need to look to the potential for the individual items of data to have copyright protection in themselves, rather than to gain protection by virtue of being in a database. In this case, the AG concluded that there was no copyright in each fixture, as the parties had
acknowledged earlier in the course of proceedings.
Databases composed of pre-existing data, not created by the database compiler, still have the potential for sui generis database right protection and could, if the ECJ shares the AG’s Opinion, attract database copyright if there was ‘creative’ effort used in the structure of the database or some other addition to the informative quality of the data by virtue of its addition to the database.
In the meantime, as indicated in our article in JIPLP  6 (7) 455–462, database owners should consider separating the creation of data from the creation of databases (investment in the obtaining, verification, and presentation of data) in order to maximize their chances of gaining protection for the database, and against extraction and re-utilization of data from it, under sui generis rights. If, for example, the database were formatted in a particular way it could qualify for database copyright and if this formatting were copied that could breach database copyrights (colour coding for example, as suggested by the AG).
The AG’s interpretation of the meaning of the ‘author’s own intellectual creation’, in particular the requirement for it to be an expression of personality, is significant. The Court of Appeal specifically found (in its referring judgment) that Article 3 ‘does not on its face call for anything artistic’. Whilst ‘mere sweat of the brow’ was excluded from the ‘author’s own intellectual creation’, the Court of Appeal found it ‘far from self-evident that other, truly creative but not artistic work is excluded’. The Court of Appeal called the meaning of ‘author’s own intellectual creation’, ‘a question calling for an answer’. The AG’s opinion is one answer, although not as specific as the Court of Appeal might have hoped. This could qualify for database copyright even though the original list did not.
However, none of the scenarios is of much comfort to those seeking to protect the data itself from extraction and use, something that sui generis database rights cover precisely but which data creators would not seem to have a chance of protecting in a database also managed by them if the AG’s opinion is followed by the ECJ. That is, unless there is another aspect to the structure of the database which is then also copied by the unlicensed user".