In its judgment delivered on 1 March 2011 (Case C-604/10), the Court of Justice of the European Union ("ECJ") declined copyright protection for football fixture lists whose compilation is dictated by rules or constraints that leave no room for creative freedom.
As a holding company managing the fixture lists of the English and Scottish Premier League, Football Dataco accused a number of UK websites and bookmakers, in particular Yahoo! and Stan James, of having infringed its copyright residing in these fixture lists. The websites and bookmakers used the annually-created fixture lists without paying financial compensation to Football Dataco.
The English Court of Appeal stayed proceedings to seek guidance from the ECJ on the conditions under which a database can be protected by copyright pursuant to Article 3 of Directive 96/9/EC of 11 March 1996 on the legal protection of databases (the "Database Directive"). Football Dataco sought copyright protection for its football fixtures since earlier case law by the UK courts had refused to grant sui generis database protection for (football) fixture lists under Article 7 of the Database Directive. The sui generis database right requires "substantial investment in either the obtaining, verification or presentation of the contents", whereas Football Dataco invested in creating data.
The ECJ followed the reasoning of its Advocate General (See, VBB on Belgian Business Law,, Volume 2010, No. 9, p. 10, available at www.vbb.com) and held that the lists are not eligible for copyright protection where the selection or arrangement of data lacks a creative element. The ECJ emphasised that copyright protection as provided for by the Database Directive concerns the structure of the database and not its contents, i.e. the data itself.
The selection or arrangement of the data contained in the fixture lists within the meaning of Article 3 of the Database Directive must thus amount to an original expression of creative or formative freedom on the part of the author. The ECJ explained that this criterion is not satisfied when the setting up of the database is dictated by technical rules and constraints that preclude any kind of creative freedom.
The ECJ acknowledged that intellectual skill and effort are necessary to create the Premier League lists of fixtures. However, skill and effort do not suffice to benefit from copyright protection under Article 3 of the Database Directive without the author expressing originality in the selection or arrangement of the data contained in the database.
Finally, the Court confirmed the Advocate General's view that the Database Directive, given its harmonising nature, precludes EU Member States from granting copyright protection to databases that do not comply with the requirements set forth in Article 3 of the Database Directive.
It is up to the English Court of Appeal to assess, in light of these considerations, whether the Premier League fixture lists owned by Football Dataco are eligible for copyright protection. Based on this ECJ judgment, it seems unlikely that the court will grant copyright protection to the fixture lists under Article 3 of the Database Directive.
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