UK football leagues and Dataco, the company that commercialises match data on leagues' behalf, attempted to assert their right under EU database laws to stop publishers including Yahoo! and betting shops from using match fixture data without paying them.
ECJ Advocate General Paolo Mengozzi has published advice for the ECJ in its case on the issue and has said that the databases behind fixture lists should not be protected by database copyright because while there is significant skill involved in creating fixtures, there is little extra skill or creativity involved in turning that information into a database.
the objective of the [EU's Database] Directive is to encourage the creation of systems for collecting and consulting information, not the creation of data," he said in his opinion.
Advocates General provide opinions to assist judges in the most hotly disputed ECJ cases. They are not binding but are followed in the majority of cases.
Databases and their contents can be protected by three distinct rights. The information in a database can be protected by copyright; the database structure itself can be so creative that it is protected by copyright, and the whole database can be protected by the 'sui generis' database right.
This was created by the European Union to encourage the development of database-dependent digital systems and it allows a creator to stop others using a database or the information in it if the investment of time, money and skill in that original database was big enough.
The ECJ had already ruled in 2004 that footballing authorities could not claim the protection of the 'sui generis' right, and copyright does not protect facts, meaning that the contents of the fixture lists could not be protected by normal copyright law.
The football authorities in this case are claiming that copyright in the structure of the database exists and that they should be able to prevent others using the information in the database and should be able to charge for use of that information.
News services and gambling companies use the information to produce fixture lists for fans, plan reporting and allow gamblers to bet on events.
Mengozzi said that the creation of football databases was not the result of creative enough effort to justify the protection of database copyright.
In this case and the UK High Court case which referred the issue to the ECJ the football authorities had produced evidence of what a significant operation putting a fixtures list together was and how much skill it took.
Mengozzi said that this may be the case, but it is irrelevant because database copyright protects the creation of databases, not the creation of data to go in them.
"The [ECJ] has made it clear that the scope of protection provided by the Directive does not cover the phase in which the data are created, but only the phase in which they are collected, verified and presented," he said. "In other words, in identifying the ‘database’, care must be taken to plot clearly the dividing line between the time when the data are created, which the Directive does not concern, and the time when they are collected or developed, which, by contrast, is relevant for the purposes of determining whether or not the database is eligible for protection."
"All the 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. In the case of football fixture lists, the basic data entered in the database are not – as the Court has already made clear – all the teams and all the possible dates, but the specific details of every single match to be played (date, teams, venue, and so on)," said the opinion. "In other words, all the details for each match are identified and collected at the data creation stage – which, as has been seen, is excluded from protection under the Directive – and the determination of those details cannot be regarded as caused by or following upon the organisation of the data in the database."
Mengozzi said that it did not make sense to ban Yahoo! and others from using the information based on a database copyright because it was not the database itself they sought to use, but the uncopyrightable information held within it.
"The very idea of using copyright to protect football fixture lists seems peculiar, to say the least," he said. "In the case of a database, the copyright essentially protects its ‘external’ aspect, its structure. It is my understanding that Yahoo and others use the data developed by the companies which organise the leagues, not the form in which in which those companies make the data public."
Intellectual property law expert Helyn Mensah, a barrister at Pinsent Masons, the law firm behind Out-Law.com, welcomed the opinion.
"The opinion gives clear guidance that data cannot of itself be protected and football fixture lists are to be regarded as basic data. Importantly, it has confirmed that database copyright does not arise through the mere application of 'labour, skill and effort but requires the author’s creative input. This ‘creativity’ concept is one that will be familiar to continental lawyers," she said.
"The opinion of the Attorney General spells a happy death knell for the protection of football league fixture lists and is likely to be welcomed by those in the sports betting industry, news and information providers, and supporters of the beautiful game in general," she said. "If followed by the Court of Justice, this will provide the certainty the industry has been seeking.”