Football Dataco Ltd & Ors v Yahoo! UK Ltd & Ors

Under Article 7(1) of Directive 96/9/EC on the legal protection of databases, investment in obtaining database contents concerns finding and collecting existing materials. It does not include resources used to create dates, times and team pairings, so football fixture lists attract no sui generis database right on that basis. The court treated that issue as acte clair and followed three CJEU decisions. It provisionally considered that the Directive’s recitals protect works incorporated into databases, rather than preserving additional national database copyright, but referred that issue because doubt remained. The meaning of selection or arrangement and the author’s own intellectual creation under Article 3 was not acte clair, so questions were referred to the CJEU.

The claimants alleged that they owned database rights or copyright in English and Scottish football fixture lists. The defendants used the lists in their businesses and denied that any relevant rights existed. The Chancery Division, Floyd J, held that an Article 3 database copyright existed but rejected the claimed sui generis right and independent national database copyright: [2010] EWHC 841 (Ch). The defendants appealed and the claimants cross-appealed. The Court of Appeal considered the scope of Article 3, the effect of Article 7 and whether national database copyright could survive outside the Directive. The central issue was whether the fixture lists constituted the author’s own intellectual creation by reason of the selection or arrangement of their contents.

The Court of Appeal referred questions on Article 3 and national database copyright to the CJEU. Lord Justice Jacob gave the judgment; Lord Justice Hooper and Lord Justice Rimer agreed.

1. Article 7. The court followed the three Fixtures Marketing decisions: Fixtures Marketing v Oy Veikkaus Case C-46/02 [2004] E.C.R. I-10365, Fixtures Marketing v Organismos Prognostikon etc. Case C-444/02 [2004] E.C.R. I-10549, and Fixtures Marketing v Svenska Case C-338/02 [2004] E.C.R. I-10497. Investment in obtaining database contents means resources used to seek out and collect existing independent materials. It excludes resources used to create the dates, times and team pairings in a fixture list. The Article 7 point was therefore acte clair, and no reference was made merely to invite reconsideration of recent Grand Chamber rulings.
2. National database copyright. The court provisionally considered that recitals 18, 26 and 27 of Directive 96/9/EC on the legal protection of databases protected copyright in works incorporated into a database, rather than preserving national rules on subsistence of copyright in databases themselves. Because a lingering doubt remained, the court referred whether the Directive precluded national database rights outside those provided by it.
3. Article 3. The fixture-list process involved substantial labour, skill, judgment and discretion, rather than merely mechanistic compilation. The court nevertheless found force in both arguments on whether the work involved selection or arrangement of data and constituted the author’s own intellectual creation. The issue was not acte clair, was necessary to the decision and was of considerable importance within the EU. The reference asked whether effort used to create data was excluded, whether fixing a date could add significance to pre-existing data through selection or arrangement, and whether own intellectual creation required more than significant labour and skill. The court also noted that Article 3 did not expressly require artistic work.

1. Court of Appeal (Civil Division) referred questions concerning Article 3 and national database copyright to the CJEU, while treating the Article 7 issue as acte clair.
2. Chancery Division (Intellectual Property), Floyd J, held that an Article 3 right existed but that neither the sui generis right nor independent national database copyright existed: [2010] EWHC 841 (Ch).