1. Football Dataco v. Brittens Pools The ECJs rules against subsistence of database copyright in football fixtures Gemma Minero, Lecturer in Law, Universidad Autónoma de Madrid

2. 1. 1. Introduction 2.Main proceedings 2.1. Parties 2.2. The creation of the annual fixtures lists of the football leagues 2.3. National rulings 2.3.1. High Court 2.3.1.1. Football league fixture list as a database 2.3.1.2. Copyright protection over the fixtures list 2.3.1.3. What about the other rights allegued? 2.3.2. Court of Appeal 2

3. 1. 3. Reasons for these preliminary questions: the old domestic (British) law 4. ECJs ruling 4.1. Fixtures lists as databases 4.2. Copyright and sui generis right as two independent rights 4.3 Copyright protection. Container versus content. Creating the database versus creating its contents 4.4. Notion of «the autors own intellectual creation» and originality criterion. 4.5. Precluding national databases copyright under other conditions? 5. Conclucions 3

4. 1. 1. INTRODUCTION The British Horseracing Board and Fixtures Marketing Ltd cases: (non) protection on the basis of sui generis right. (British Horseracing Board and Fixtures Marketing Ltd (C- 203/02, C-444/02, C-46/02 and C-388/02)). Sui generis right does not cover the resources used to the creation of materials which make up the contents of the database (establishing the dates, times and the team pairings for the matches in the league…) 4

5. 1. 2. MAIN PROCEEDINGS. 2.1. Parties Claimants: Football Dataco, English and Scottish Premier Leagues. Organizers od the leagues. They make public the lists. Defendants: Yahoo! And others. Provide news/Organise betting activities Claim: 1) sui generis pursuant to art. 7 of Database Directive 2) copyright pursuant to art. 3 of that Directive 3) copyright under UK intellectual property legislation Infringed by defendants uses of the claimants database. 5

6. 1. 2. MAIN PROCEEDINGS. 2.2. The creation of the annual fixture lists of the football leagues Golden rules Outline fixtures lists, possible dates Questionnaires to the clubs concerned. Squencling and pairing (golden rules + clubs requests). Mr. Thompson. Software Review carried out manually. 6

7. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.1. High Court. 2.3.1.1. Football league fixture list as a database Art.1(2) of Database Directive: independent materials, systematic or methodical arrangement 7

8. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.1. High Court, [2010] EWHC 841 (Ch) 2.3.1.2. Copyright protection over the fixture list The list are eligible for protection under art. 3 of the Databases Directive, on the grounds that their preparation requires a substantial quantum of creative work. Process not purely mechanistic, not mere 'sweat of the brow, but involved very significant labour and skill at each stage (in order to satisfy competing requirements + golden rules). 8

9. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.1. High Court. 2.3.1.2. Copyright protection over the fixture list «Selection or arrangement» of the contents of a database for the purposes of Art. 3 of the Directive are notions which are clearly separate from mere non-selective gathering of information Are selection decisions which are taken in the course of creating data, which necessarily involve adopting one alternative and rejecting others, properly to be regarded as part of the selection or arrangement of the contents of a database? YES! 9

10. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.1. High Court. 2.3.1.2. Copyright protection over the fixture list Is that specific work of selection and arrangement «the author's own intellectual creation»? YES! [97] «I do not think that "author's intellectual creation" requires the reader of a database to be able to identify the author. (...) There were numerous stages in the process of allocation of matches to dates, and in the selection of the dates themselves where judgment and discretion in the relevant sense had to be exercised». [98] «Finally I have to consider whether what is done is quantitatively sufficient. I have no doubt that it is, based on the evidence». 10

11. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.1. High Court. 2.3.1.3. What about the other rights alleged? a) Sui generis right. NO! The investments was in the creation of the contents of the database not in obtaining, verification and presentation of those contents and the extra effort (if any) in obtaining, verifying or presenting the data was trivial and not sufficient to attract the sui generis right. 11

12. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.1. High Court. 2.3.1.3. What about the other rights alleged? a) Sui generis right In Football Dataco Ltd. v. Sportradar GmbH ([2011] EWCA Civ 330), the answer was YES! Why? The database used was one that comprises goals and other features of each match, recordered once it has happened 12

13. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.1. High Court. 2.3.1.3. What about the other rights alleged? a) Copyright under UK intellectual property legislation. No! 13

14. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.2. Court of Appeal, [2010] EWCA Civ 1380. Ineligibility of the lists for protection by the sui generis right. Are the lists eligible for protection by copyright under art. 3 of Database Directive? Could the list be protected by copyright pursuant to UK legislation prior to the Directive under different conditions? Art. 14(2) of Database Directive «where a database protected under copyright arrangements in a Member State on the date of publication of this Directive does not fulfill the eligibility criterion for copyright protection laid down in art. 3(1), this Directive shall not result in any curtailing in that Member State of the remaining term of protection afforded under those arrangements». 14

15. 1. 2. MAIN PROCEEDINGS. 2.3. National rulings. 2.3.2. Court of Appeal. Questions for a preliminary ruling: 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 authors 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), and c) does authors own intellectual creation require more than significant labour and skill from the author, if so what? 1. Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by [Directive 96/9]? 15

16. 1. 3. Reasons for these preliminary questions: the old domentic (British) law. Historically, the UK copyright was held to subsist in compilations consisting of data solely created by the compiler with 'sweat of the brow', such as football fixtures lists, as literary works. Football League Limited v Littlewoods Pools [1959] Ch. 637; [1959] A W.L.R. 42. One should have regard to the whole history, including any work done to create the data. 16

17. 1. 3. Reasons for these preliminary questions: the old domentic (British) law. Database Directive UK implementation: § 3(1) (a) and (d), 3A. CDPA + Database Regulations « 3. Literary, dramatic and musical works (1) In this Part "literary work" means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes (a) a table or compilation other than a database, and (b) a computer program; (c) preparatory design material for a computer program; and (d) a database.» 17

18. 1. 3. Reasons for these preliminary questions: the old domentic (British) law. «3A. Databases (1) In this Part "database" means a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means. (2) For the purposes of this Part a literary work consisting of a database is original 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.» 18

19. 1. 3. Reasons for these preliminary questions: the old domentic (British) law. Many of the claims referred to the British courts alleged to enjoy, either cumulative or alternatively, i) the copyright under art. 3 of the Directive (sections 1(1)(a), 3(1)(d) and 3A(2) CDPA) ii) the sui generis right under the art. 7 of the Directive (section 13 of the Database Regulation) and iii) copyright in a table or compilation other than a database pursuant to sections 1(1)(a) and 3(1)(a) CDPA. The claimants uphold the Directive merely created two additional rights. Additional, they meant, to that previous English law and case- law. 19

20. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.1. Fixture list as databases 4.2. Copyright and sui generis right as two independent rights Hierarchical relationship ? No! The very object of the two types of protection is different. i) Copyright focuses on the structure of the database, «shall not extend to [the] contents» ii) Sui generis protection is conferred, not to protect the originality of the database in itself, but to compensate the effort expended in obtaining, verifying and/or presenting the materials contained therein. The fact that a database does not satisfy the conditions of eligibility for protection by the sui generis right does not automatically mean that it is also not eligible for copyright protection under Art. 3 of the Directive. 20

21. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.3. Copyright protection. Container versus content. Creating the database versus creating its contents. Up to now, the Court had drawn that distinction, between the creation and the banking of the data, in the course of discussing the sui generis protection. The novelty in this ruling is that the Court extends this point also to copyright over databases. Answer to the preliminary question: NO! The resources mentioned in the main proceedings concern the intellectual effort and skill of creating data. Not relevant in order to assess the eligibility of the database that contains them for any of the two protections provided for by Database Directive, both copyright and sui generis right 21

22. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.3. Copyright protection. Container versus content. Creating the database versus creating its contents. Transition from the generic lists (all the possible dates and times) to the definition of the individual matches (for instance, team A against team B on date x), choosing a combination and rejecting the others, takes place at the mere data creation stage. It is irrelevant. The generic lists of teams, dates and times have not autonomous informative value. 22

23. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.3. Copyright protection. Container versus content. Creating the database versus creating its contents. Why claiming copyright? Defendants used the contents, the data developed by the companies which organise the football leagues, but not the structure of the database. It is not even certain that, were protection under copyright available for football fixtures lists, it could impede the current activities of the defendants. After ECJs judgment of 2004, recourse to the copyright as a fallback solution? 23

24. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.4. Notion of «the authors own intellectual creation» and originality criterion. Only one criterion: originality. When, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices (Bezpečnostní softwarová asociace,[48]-[50]; Painer, [89]) and thus stamps his personal touch (Painer, [92]). 24

25. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.4. Notion of «the authors own intellectual creation» and originality criterion. Not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom (Bezpečnostní softwarová asociace, [48] and [49]; Football Association Premier League and Others, [98]). It is irrelevant whether or not that selection or arrangement includes adding important significance to that data. 25

26. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.4. Notion of «the authors own intellectual creation» and originality criterion. As regards databases copyright protection, the ECJ uphold a formula which is and has being typical of the continental copyright tradition, but not for the common law traditions. For copyright protection, the more rigorous paradigm of the countries of the continental tradition was chosen. For sui generis protection, a criterion which is closer to that of the common law tradition. Advocate General's conclusions. 26

27. 1. 4. Court of Justices ruling, [2012] ECJ-604/10. 4.5. Precluding national databases copyright under other conditions? Art. 3 of the Directive has completely harmonised the protection of databases by copyright, so that further rights cannot be conferred at national level. ¿Art. 14(2) of the Directive? It would make no sense if, after the entry into force of the Directive, national law could continue, without any limitation in time, to protect a database which does not meet the requirements under the Directive. 27

28. 1. 5. Conclusions Is it enough? The UK situation. Why would the British legislator have kept the three different concepts (databases, compilations, tables)? The U.K. would not need the sui generis right at all because all original (in the U.K. traditional sense of the word) non-databases collections can benefit from traditional U.K. copyright law This ruling means three things: 1) the originality required for a database to be protected by copyright is exactly the same as the one required to the rest of works; 2) creativity is needed for protecting a database by copyright; and 3) the traditional skill, labour and judgment criteria will only be maintained for sui generis right, not anymore in the copyright context. 28

29. 1. 5. Conclusions Three more things have to be done: 1) The requirements set out in Art. 1(2) of the Database Directive must be interpreted in a wide way. Database = collection and systematic arrangement of materials. If not, we are promoting the maintenance or creation of parallel/alternative legal classifications 29

30. 1. 5. Conclusions Three more things have to be done: 2) The Infopaq, Painer and other European case-law dealing with originality requirements must be understood as actually binding by the national courts. English court must not still provide for protection of tables and compilations other than databases, as long as they have enough skill, judgment and labour. Therefore, another new preliminary ruling, dealing with the precluding of copyright protection to the other non-databases but near-databases products, is not need now. 30

31. 1. 5. Conclusions Three more things have to be done: 3) National parallel or alternative concepts such as the U.K. compilations and tables categories should not subsist. The CDPA should be revised at last by deleting section 3(1)(a). 31

32. Thanks for your attention! gemma.minero@uam.es