Alleged use of annual fixture lists of professional football matches without a licence

01 May 2010

Rob Hamblin

(1) Football Dataco Limited (2) The Football Association Premier League Limited (3) The Football League Limited (4) The Scottish Premier League Limited (5) The Scottish Football League (6) P A Sport UK Limited v Brittens Pools Limited (in action 3222); Yahoo! UK Limited (in action 3223); (1) Stan James (Abingdon) Limited (2) Stan James PLC (3) Enetpulse APS (in action 0391)
High Court (Mr Justice Floyd) 23 April 2010

Background

The claimants collectively brought three separate actions against a number of defendants who had allegedly been using the annual fixture lists of professional football matches in the English and Scottish Premier Leagues and football leagues (the “Fixture Lists”) without a licence.

The High Court heard a joint trial of all three claims to establish as a preliminary issue whether any and if so what rights subsist in the Fixture Lists.

The claimants argued the Fixture Lists were protected by (1) literary copyright as a database under ss.3 and 3A of the Copyright Designs and Patents Act 1988 (“CDPA”); (2) the sui generis database right contained in article 7 of the Copyright and Rights in Databases Regulations 1997 (the “Regulations”); and / or (3) copyright irrespective of whether the Fixture Lists constituted a database.

Relevant Law

Section 3 CDPA states that copyright subsists in a database. The term ‘database’ is defined in section 3A(1) as “a collection of independent works, data or materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means”. Under section 3A(2) a database is original for the purpose of being an ‘original literary work’, “if, and only if, by reason of the selection or arrangement of the contents of the database, the database constitutes the author’s own intellectual creation”.

Article 7 of the Regulations provides protection for the maker of a database where there has been a “substantial investment in either the obtaining, verification or presentation of the contents” and applies irrespective of whether a database qualifies for copyright protection by virtue of the CDPA.

The sui generis right

The Judge started by considering the sui generis right in the Regulations and cited three claims previously brought by Football Marketing Limited (“FML”), the company responsible for exploitation of the rights in the Fixture Lists outside the United Kingdom, against companies in Sweden, Finland and Greece for enforcement of those rights.

All three cases were referred to the ECJ which held that there was a “substantial investment” in compiling the Fixture Lists, for example in deciding the date on which games would be played, who would play on those dates and where. However, this investment was attributable to the author of the Fixture Lists and not FML. Furthermore, once the Fixture Lists had been compiled, the effort required by FML in “the obtaining, verification or presentation of the contents” was minimal and was restricted to adapting certain data to take account of any match postponements. It did not therefore constitute a substantial investment and FML could not claim protection for the Fixture Lists under the Regulations.

In the present case, the claimants argued the ECJ had misunderstood the facts of the FML cases. However, the Judge was not taken by this argument and declared that, for the same reasons as above, the claimants could not benefit from the sui generis right.

Literary copyright as a database

In order to identify whether the Fixture Lists were subject to copyright as a database, it was first necessary to establish the data that was collected and arranged in the database. The Judge held this included as a minimum the general periods during which matches could be played, the specific dates within these periods when the matches were actually played, and the teams playing in those matches.

Secondly the Judge examined the work involved in compiling the Fixture Lists and attempted to establish which elements constituted “selection and arrangement” for the purposes of s.3A CDPA.

Much time, and indeed 44 paragraphs of the judgment, was spent indentifying the exact process by which the Fixture Lists were compiled. At the end of this investigation the Judge concluded the process was “one which involves very significant labour and skill in satisfying the multitude of often competing requirements of those involved.”

In relation to the elements of this process that constituted selection and arrangement, the claimants stated the authors plainly exercised choice over the dates on which the fixtures were played and the identity of the teams to play in each match on those dates. According to the claimants, if this was not selection it certainly was arrangement. Against this the defendants argued that, as with the sui generis right in the Regulations, any selection or arranging must be done in connection with the finished version of the Fixture Lists, rather than as part of its creation. However, the Judge held there was a fundamental difference between the protection given by the Regulations, which is designed to encourage investment in particular types of data gathering, and copyright under the CDPA, which seeks to provide encouragement for creative endeavour. It was not therefore appropriate to apply a decision in relation to the former to considerations of the latter and there was no reason why selection decisions made in the course of arriving at the final version should not be properly described as selection or arrangement.

Thirdly the court considered whether the work of selection and arrangement, as identified above, was the author’s own intellectual creation. Despite arguments from the defendants to the contrary, the Judge held it was not a requirement that the Fixture Lists enabled the reader to identify the author. Furthermore, having heard the methods by which the Fixture Lists were compiled, there was no difficulty in concluding that judgment and discretion on behalf of the author was needed throughout the process. According to the Judge, “The process is therefore not one where everyone would come up with the same answer. Some solutions will better accommodate the requirements of clubs and rules than others…The quality of the solution depends in part of the skill of those involved.” The Judge therefore concluded that the Fixture Lists could accurately be described as the author’s own intellectual work.

The final task was to examine whether the work was quantitatively sufficient to attract copyright protection and having already examined the method by which the Fixture Lists were compiled, the Judge also held this requirement was satisfied.

He therefore concluded that the Fixture Lists were the subject of database copyright.

Copyright “irrespective” of database

The Judge held that the only way he perceived the Fixture Lists could attract copyright was as a database (indeed the fact that the Fixture Lists constituted a database was not denied by the defendants) and as such it was not possible for copyright to exist by any other route.

Comment

This is unlikely to be the last word on the matter. It is likely that the Court of Appeal or the ECJ may consider the issue either in this or a later case.