Abstract
A painful setback for the Sport Leagues that are seeking a legal basis for demanding royalties for the exploitation of their fixture lists.
On 1st March 2012 the European Court of Justice delivered a decision which will likely mark the end of the discussions concerning the protection afforded to fixture lists under the database copyright set forth by art. 3(1) EU Directive 96/9.
In a case related to the English and Scottish football fixture lists, the ECJ declared the requirement for that protection to be granted, namely, the originality as expression of the author’s creative freedom. Even if the last word is left to the national judge, such a requirement seems difficult to be found in the selection and arrangement of matches and dates.
Article
With its judgment of 1st March 2012 the European Court of Justice (ECJ) definitively dashed the hopes of those who were “betting” on the legal protection of football fixture lists (scheduling and match compositions) under the database copyright set forth by art. 3(1) of EU Directive 96/9.
The case was referred to the ECJ by the Court of Appeal ofEnglandandWales. Football DataCo is a company that, on behalf of the English and Scottish professional football leagues, manages and markets their fixtures and match related data. Football DataCo summoned Yahoo!UK and certain sports betting agencies, claiming a database copyright infringement for unauthorized economic exploitation of the information contained in the annual fixture lists arranged by the leagues.
The European Database Directive sets forth two levels of database protection. The first involves the database architecture as an expression of its author’s intellectual work, the proper “database copyright” under art. 3. The second one, which requires the database creator to make a substantial investment either in obtaining, or in verifying or presenting the data, thereupon protects the database contents from unauthorised extraction or re-utilization, the so called “sui generis database right” under art. 7.
In its claim against Yahoo!UK, Football DataCo invoked the application of both levels of protections to football fixture lists. The English High Court, ruled out the eligibility of fixture lists for protection by the sui generis right based on the former case-law of the ECJ[1], but it did hold that the act of selection and arrangements of clubs, dates and matches, implies sufficient judgement and discretion from its author, to be considered as “the author’s own intellectual creation”.
Upon appeal, the matter was referred to the ECJ which was asked to clarify the requirements for the database legal protection granted by the Directive 96/9 with reference to fixture lists.
The recent decision of the ECJ puts an end to the querelle, stating that “a database is protected by the copyright laid down by that directive provided that the selection and arrangement of the data which it contains amounts to an original expression of the creative freedom of its author”. To this purpose it is not sufficient that the creator of the database has put significant labour and skill in the elaboration of the relevant data “if that labour and that skill do not express any originality in the selection or arrangement of that data”. The ruling of the ECJ is unmistakable and seems to leave limited leeway for interpretation by the referring judge.
The ECJ, in response to the second preliminary question, denounced the illegitimacy of any national legislation which grants databases copyright protection without regard to the requirement of originality, specifying that such a requirement must be interpreted and applied in accordance with art. 3(1) of the Directive 69/9. This landmark decision was delivered just after the launch of a licensing system created by the German Football League (DFL), which appears to be based on the existence of an exclusive intellectual property right in fixture lists.
In the light of the ECJ’s decision and in the absence of any ad hoc legislation, the European football leagues shall devise new solutions for demanding the payment of royalties from anyone – in primis from betting agencies – who directly or indirectly commercially exploit football fixture lists.
Barbara Sartori
Luca Ferrari
with the cooperation of Anna Bonan
[1] The Court of Justice held that the resources used to establish the dates, times and the team pairings for the various matches in the league, even if investing in the creation of materials which make up the contents of a database, do not constitute, as required by art. 7 of Directive 96/9, an investment in obtaining, verifying and presenting them. (ECJ, judgments of 9.11.2004, Fixture Marketing , C-46/02, C-338/02, C-444/02)
