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| Despite his years of experience to the contrary, the judge still hoped against hope that cases with the word "football" in their name might have something to do with football for a change ... |
What was this all about? In simple terms, Football Dataco (and others) ran the English and Scottish football leagues. In doing so, they drew up and made public their lists of all the fixtures to be played each year in their respective leagues. Yahoo! UK (and others) used those schedules to provide news and information and in organising betting activities. Football Dataco and their friends couldn't see why Yahoo and their friends shouldn't pay for the rights to use the football fixture lists which they had compiled -- and from which the others were making all that lovely money. But were Football Dataco and their friends entitled to claim protection for thir fixture lists under the Database Directive (Directive 96/9), claiming either copyright or the ‘sui generis’ right?
The Court of Appeal, England and Wales, agreed that there was no chance of protection based on the ‘sui generis’ right, since the Court of Justice had killed that option stone-dead following its rulings in the Fixtures Marketing and British Horseracing Board references. However, there was still a racing chance that this case involved a database that involved the author's own creative effort and which was therefore protected as a regular work of authorship. Accordingly the Court of Appeal turned to its judicial cousins in Luxembourg and asked them the following questions:
‘(1) In Article 3(1) of Directive 96/9 … what is meant by “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” and in particular:
(a) should the intellectual effort and skill of creating data be excluded?
(b) does “selection or arrangement” include adding important significance to a pre-existing item of data (as in fixing the date of a football match)?
(c) does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?
2. Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?’The Advocate General proposed the following answers:
"(1) A database can be protected by copyright, for the purposes of Article 3 of Directive 96/9 ... only if it is an original intellectual creation of its author. For the purpose of that assessment, the activities involved in the creation of the data cannot be taken into account. In the case of a football fixture list, the determination of all the elements relating to each single match is a data creation activity.Did the Court of Justice agree? It appears so, though the Court did so in rather more words and in substantially broader terms. After summarising with apparent approval its earlier rulings in Fixtures Marketing and British Horseracing Board, the Court left little room for speculation as to what the outcome might be. The operative part of its 53-paragraph decision reads thus:
(2) Directive 96/9 precludes national law from conferring copyright protection upon a database which does not meet the requirements laid down in Article 3 of the Directive itself".
"1. Article 3(1) ... must be interpreted as meaning that a ‘database’ within the meaning of Article 1(2) of that directive is protected by the copyright laid down by that directive provided that the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author, which is a matter for the national court to determine. [In other words, Article 3(1) means pretty much what it says it means]The IPKat is fascinated by the bit about "the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains". After all, it is only a week since the Red Bus copyright seminar, at which he learned that the significant labour and skill required in manipulating photos by means of Adobe PhotoShop software was, it seems, an expression of originality. Presumably the courts will have to draw the line on a case-by-case basis between significant labour and skill that justifies protection and that which doesn't.
As a consequence:
– the intellectual effort and skill of creating that data are not relevant in order to assess the eligibility of that database for protection by that right;
– it is irrelevant, for that purpose, whether or not the selection or arrangement of that data includes the addition of important significance to that data, and
– the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.
2. Directive 96/9 must be interpreted as meaning that, subject to the transitional provision contained in Article 14(2) of that directive, it precludes national legislation which grants databases, as defined in Article 1(2) of the directive, copyright protection under conditions
which are different to those set out in Article 3(1) of the directive".
Merpel notes the bar on the provision of copyright protection under conditions other than those laid out in Article 3(1) of the Directive. There is no bar on non-statutory protection, she assumes, through an action for unfair competition where the facts support it.