Football fixtures protected by copyright but not database right, says High Court

The EU's Database Directive of 1996 created an entirely new intellectual property right designed to give the creators of databases the right to protect them independently of copyright law, as long as there has been a "substantial investment" in obtaining, verifying or presenting the contents of the database.

UK copyright law gives a separate copyright protection to some databases. This protection is for the intellectual creativity of the database maker, and applies only if the selection and/or arrangement of the contents of the database are original and constitute the author's own creation.

Mr Justice Floyd has said that the English and Scottish football leagues cannot protect their fixtures lists under the Database Directive, but that the lists are protected by the database copyright in the UK's Copyright, Designs and Patents Act.

He said that anyone examining whether a database should be protected by this law should apply a four step test.

"It seems to me that the task for the court is as follows: i) Identify the data which is collected and arranged in the database; ii) Analyse the work which goes into the creation of the database by collecting and arranging the data so identified, to isolate that work which is properly 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; iv) Finally one should ask whether the work is quantitatively sufficient to attract copyright protection," he said.

Mr Justice Floyd said that the choice of fixture dates and which games should be played on which dates counts as selection and arrangement, and that the resulting list was the intellectual creation of the man who creates the fixtures lists for all the main Scottish and English leagues, Glenn Thompson.

"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 in the relevant sense had to be exercised," he said.

The judge was also in no doubt that the volume and complexity of work involved in creating the lists was enormous. The ruling outlined the many competing demands that had to be met by the lists, including ensuring that neighbouring teams did not play at home on the same day; ensuring that home and away games alternated; that games were scheduled to avoid non-football events  and that non-league fixtures were taken into account.

"I conclude that the process of preparing the Fixture Lists, whether in England or in Scotland remains one which involves very significant labour and skill in satisfying the multitude of often competing requirements of those involved," he said. "The process is therefore not one where everyone would come up with the same answer. Some solutions will better accommodate the requirements of the clubs and rules than others. The more sophisticated the compilation process, the more permutations it will be able to consider and the more requirements it will be able to satisfy."

"This work is not mere 'sweat of the brow', by which I mean the application of rigid criteria to the processing of data. It is quite unlike the compiling of a telephone directory, in that at each stage there is scope for the application of judgment and skill," he said.

Though a computer was used as a tool to enable a working fixture list to be created, the Court found that the job still required Thompson's skill and judgment.

The English and Scottish football leagues are suing Brittens Pools; Yahoo!; and gambling operator Stan James for allegedly using its fixtures lists without a licence.

Those companies argue that the lists do not deserve the protection of copyright or database laws. They said that a European Court of Justice ruling in a case involving a collection agency acting for the leagues, Fixtures Marketing Ltd (FML), backs their arguments.

The ECJ said in the FML case that that company did not have the right to rely on the Database Directive to collect licensing revenue from companies around Europe that used the fixtures lists.

The ECJ said in that case that the database right should only protect systems that demanded significant investment in their creation. The fact that the information itself in a database required time and effort to create was outside its remit, it said.

"Finding and collecting the data which make up a football fixture list do not require any particular effort on the part of the professional leagues," said the ECJ ruling. "Those activities are indivisibly linked to the creation of those data, in which the leagues participate directly as those responsible for the organisation of football league fixtures. Obtaining the contents of a football fixture list thus does not require any investment independent of that required for the creation of the data contained in that list."

That ECJ ruling was similar to a previous ECJ ruling which said that the British Horseracing Board (BHB) could not enjoy the protection of the database right because all the effort that went into the creation of runners and riders lists was to ensure that the organisation fulfilled its primary purpose, which was to organise races.

It could not reasonably claim that all that effort was simply to create a database of runners and riders. That database was a by-product easily formulated once the main job of the BHB was done and so did not earn the Directive's protection, the Court said.

Mr Justice Floyd said that the same principles applied in this case, that the football leagues expended significant effort creating the fixtures lists, but the additional effort in making a database out of them was not great enough to earn the protection of the database right.

"The separate work which goes into obtaining, verifying or presenting the data in the Fixture Lists is trivial. The Fixture Lists are not protected by the sui generis [database] right," he said.