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Football fixture lists free to publish following ECJ ruling, expert says

UK bookmakers and news outlets will not be in breach of copyright if they display English or Scottish football fixture lists to consumers following a European Court of Justice (ECJ) ruling, an expert has said.01 Mar 2012

On Thursday the ECJ ruled that football fixture lists are not protected by copyright if rules or constraints around how the lists are compiled leave no room for creative freedom.

Fixture lists in Scotland and England are compiled according to several 'golden rules', according to the ECJ. The rules include that no club can have three consecutive home or away matches or have four home matches or four away matches out of five consecutive games. The rules also require that "as far as possible" clubs play an equal number of home and away games over the course of a season and should "as near as possible" have to play the same number of home and away games in midweek.

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.

The UK High Court will still have to formally apply the ECJ's findings in its ruling, but copyright law and database rights expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said Dataco's legal challenge would be quashed.

“The Court of Justice’s ruling closes the door on Football Dataco’s attempts to extract licence fees from people and companies who want to use football fixture lists," Connor said.

“This ruling shows common sense prevailing and provides certainty in an area of law which was in desperate need of clarification.  Bookmakers and news services can now make available football fixture lists to their customers at the start of a season to allow the public to plan their football viewing for the year ahead," he said.

English and Scottish football fixtures are organised in accordance with the 'golden rules' and following discussions with police and other bodies and partially involves using computer software to create the list of matches. The ECJ said that it was a matter of fact that the preparation of the lists "requires very significant labour and skill".

However, it ruled that that fact was irrelevant in determining whether the arrangement of the football fixture lists is copyrightable. This is because the rules setting out the object of protection in the EU's Database Directive make clear that copyright "do[es] not extend to the creation of the data contained in [a] database," it said.

The ECJ said that, in the Dataco case, the information into which the "resources, in particular intellectual resources ... are deployed" to create the structure of the English and Scottish fixture lists "relate to the creation of the same data which is contained in the database". It therefore has no bearing on whether the database structure itself is copyrightable, the ECJ said.

"Materials ... that concern the intellectual effort and skill of creating data are not relevant in order to assess the eligibility of the database that contains them for the copyright protection provided for by [the] Directive," the ECJ said.

"[The Directive's] purpose is to stimulate the creation of data storage and processing systems in order to contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity and not to protect the creation of materials capable of being collected in a database," it said.

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.

Under the EU's Database Directive "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". A database is defined as "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means".

The ECJ said that the "originality" of the 'author's own intellectual creation' was also key to determining whether databases were copyrightable.

"As regards the setting up of a database, that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices  and thus stamps his ‘personal touch’. By contrast, that criterion is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom," the ECJ said.

The ECJ said it was up to the High Court to determine whether the "selection or arrangement" created in the formation of the football fixtures was "original" enough to merit copyright protection.

It said that that question of eligibility did not hinge on whether the "selection or arrangement" added important significance to the data itself. Nor does the "significant labour and skill" of the database creator matter when assessing whether the fixture list structure is copyrightable "if that labour and that skill do not express any originality in the selection or arrangement of that data".

Only if "the procedures for creating" the English and Scottish football fixture lists are "supplemented by elements reflecting originality in the selection or arrangement of the data contained in those lists" can the High Court determine that the information is copyrightable, the ECJ said.

The ECJ also said that national laws that "grants databases ... copyright protection under conditions which are different to that of originality laid down in [the EU's Database Directive]" are precluded.

"The effect will be that certain sections of UK copyright law need to be amended to take account of this judgment," Iain Connor of Pinsent Masons said.