Football Dataco Ltd & Ors v Brittens Pools Ltd (In Action 3222) & Ors

Database copyright depends on the author’s intellectual creation in the selection or arrangement of the contents. Relevant selection and arrangement may occur while the contents are being created; it is not confined to choosing from pre-existing data. The court must separate that work from labour concerned only with creating, gathering or verifying data. The work must involve judgment, taste or discretion and must be quantitatively sufficient.

The sui generis database right has a different focus. Investment in creating the data does not qualify as investment in obtaining, verifying or presenting it. Applying that distinction, professionally compiled football fixture lists attracted database copyright, but no sui generis right and no separate copyright outside the database.

The claimants organised English and Scottish professional football competitions and produced annual fixture lists. The defendants included a pools company, a media company and betting companies alleged to have used the lists without licences.

At a joint trial of a preliminary issue, the court considered whether the lists were protected by database copyright under sections 3 and 3A of the Copyright, Designs and Patents Act 1988, by sui generis database right under the Copyright and Rights in Databases Regulations 1997, or by copyright independently of their status as databases.

1. Database copyright. The Fixture Lists were collections of independently accessible data arranged systematically. The relevant contents included match dates, matches and the dates of specific matches.
2. Selection and arrangement. The court must distinguish work concerned with the creation of data from work concerned with selecting or arranging it. Selection and arrangement may begin before all the data has been created. Decisions allocating matches to dates and deciding which matches should be played on particular dates were capable of constituting relevant selection or arrangement.
3. Intellectual creation. The relevant work must involve the author’s judgment, taste or discretion. Rote application of fixed rules is insufficient, but the exercise of discretion in resolving competing constraints can satisfy the test. The amount of relevant work must also be quantitatively sufficient.
4. Sui generis right. The investment relied upon was principally directed to creating the fixture data. The separate work of obtaining, verifying and presenting that data was trivial. Following the reasoning in the FML decisions, the lists therefore did not attract sui generis database right.
5. Application. The preparation process involved substantial labour and skill, competing requirements, value judgments and non-deterministic choices. It was not a mere “sweat of the brow” exercise. The lists consequently attracted database copyright.
6. There was no scope for copyright in the Fixture Lists by another route, because their protection could only arise from the collection and arrangement of the data as databases. The court would hear counsel on the appropriate order.