“I must also observe that, in the present case, the very idea of using copyright to protect football fixture lists seems peculiar, to say the least” -Advocate General Mengozzi
On March 1st, the Court of Justice gave judgment in the case of Football Dataco v Yahoo. This was a reference from the UK Court of Appeal. It concerned the question whether English and Scottish football league fixtures lists are databases protected by copyright. For some of us, the precise method by which football fixtures are compiled represents too much information, and the amount of litigation spawned by them suggests a strangely English obsession. But they have done European copyright law a favour, in time and time again coming back for a kicking in the courts. Without them, the Database Directive would be near impossible to interpret.
This time however, for UK and Irish law, the implications extend beyond protection of the database. The European Court was asked to comment on the common law test for originality – whether “labour and skill or judgment” in creating a work is enough to justify copyright protection, or whether the European standard of “the author’s own intellectual creation” requires something more, and if so, what. Because the European Court has, in a flurry of recent cases, determined that the latter standard applies to all copyright works, the need to rewrite a lot of textbooks has been hanging in the balance.
Back in 2004 the European Court had decided that footfall fixtures lists failed to qualify for the “database right” – a form of protection with no originality requirement. But, in evaluating the method by which the lists are complied, the UK High Court decided on this occasion that while they did not enjoy the “database right”, they enjoyed the alternative form of protection for databases, as original copyright works. The reason lay in the fact that the process leading to the creation of the fixtures lists involves considerable labour and judgment in satisfying a number of competing imperatives. The process is not one in which everyone would come up with the same solution. There are several phases to the settling of the lists, the last of which involves the exercise of a number of choices made personally by a Mr Thompson.
The Court of Appeal was not so sure, and referred the matter to Europe.
The European Court has emphasised that copyright protection for the database concerns the structure of the database and not its contents. The selection or arrangement of the contents must amount to an original expression of creative or formative freedom on the part of the author. Intellectual skill and effort in creating the data is irrelevant for this purpose. It is for the national court to assess whether the football lists in question are databases which satisfy the conditions for eligibility. In conducting this assessment the court will need to be satisfied that the procedures for creating the lists is supplemented by elements reflecting originality in the selection or arrangement of the data contained in the lists.
It does indeed look as though the football fixtures have been given the boot again. And further, that the “labour skill and judgment” test is toast. The phrase will have to be banished from the copyright lexicon in this part of the world and replaced by “the author’s own intellectual creation”, and yes, it seems that editing the textbooks will be necessary.
But I’d wait a little longer if I were a publisher. We have yet to see what the UK court makes of the judgment. A small window of opportunity remains open. It is not entirely impossible that the court will construe Mr Thompson’s contribution as one which does demonstrate the required level of expression of creative or formative freedom in selecting the data for the final lists from the available range of options and that, in consequence, the “author’s own intellectual creation”, when it crosses the Channel, may look not at all unlike “labour and skill or judgment” !
