Everyone thought the question of what rights exist in football fixture lists was settled back in 2004 when the European Court of Justice concluded that the then-new database right did not protect football fixture lists. But a judge has just ruled that they are protected. What now?
As many in the gambling industry will know, this decision did not stop Football Dataco Limited (and others) from sending out demands for payment for use of football fixture lists.
In response to these demands, companies took one of two views. Either they would pay on the basis that the sum demanded was relatively modest, or they would refer Football Dataco to the European case brought by Fixtures Marketing Limited, the predecessor to Football Dataco, and say that they had no legal right to pursue any licence fees.
Plainly, Football Dataco was tired of receiving the second type of response and went to the English High Court to seek clarification as to which legal rights may protect football fixtures.
In a judgment given by Mr Justice Floyd in April, much to the surprise of the gambling industry, the Judge found that football fixture lists were indeed protected by legal rights – but still this is not the end of the matter. An appeal on the ruling is due to be heard in November.
The background as to how Football Dataco, PA Sports and a variety of English and Scottish leagues came to sue Brittens Pools, Yahoo!, Stan James and Enetpulse is complicated. However, the question put to Mr Justice Floyd was a simple one: "Do legal rights protect football fixtures?" Specifically, were football fixtures protected by copyright and/or database right?
Creation of the fixtures lists
The evidence before the English Court was that when compiling football fixtures, the leagues undertook a process which was part automated and part the work of people.
This process was governed by various rules which meant, for example, that teams should not play more than a certain number of consecutive home or away matches and should not play at home when their nearest same city rival was also at home.
These rules meant that the creation of a fixture list is certainly more than a question of merely putting all the teams' names into a computer. Add to that the demands of television and it was definitely arguable that a fixture list may be an original literary work and that the investment in obtaining, verifying or presenting the fixture list was sufficient to give rise to the database right protection.
Since the European Court of Justice has already determined that fixture lists are not protected by the database right, it is hard to see how the Judge could have decided anything other than what he did, namely that no database right existed.
The European Court said that drawing up a fixture list primarily involved the creation of data, and the extra effort (if any) in obtaining, verifying or presenting the data was trivial and not sufficient to attract the database right.
Even though Football Dataco went to great lengths to explain the complexity of compiling a fixture list, the Judge was content that the claimants had not satisfied the "investment test," maintaining that all the effort went into creating the data.
How then did the Judge conclude that legal rights did exist in football fixture lists?
In order to answer this question, it should be noted that the Database Right Directive also amended national copyright laws and, to the extent a law did not already exist, it introduced copyright protection for databases produced as a result of the author's own intellectual creation.
When the Fixtures Marketing Limited case was pursued against non English companies, the question of the new UK national copyright law did not arise. Accordingly, the question of whether copyright could protect a fixtures list had not been considered since a series of old English cases decided before the Copyright, Designs And Patents Act 1988 had been amended to introduce the stand alone European database right.
Whether or not any piece of written work is protected by copyright depends on whether the work is original in the sense of being the author's own intellectual creation. Even though the creator of the English league fixture list, Glenn Thompson, admitted that his fixture list did not have his stamp of individuality on it, the Judge held that judgement and discretion in the relevant copyright sense was exercised and that this was quantitatively sufficient to conclude that fixture lists were protected by "database copyright".
So is the end of the matter? The answer is almost certainly no.
First, Mr Justice Floyd's decision is subject to an appeal which will be heard in November.
Second, regardless of the outcome of the appeal, there is almost certainly going to be a reference to the European Court of Justice to ensure the English decision on the database copyright is consistent with a European decision on database right.
Third, this case was only a preliminary issue. The Court did not hear any arguments as to whether or not the defendants had valid defences. For example, at least in the context of news reporting, it is difficult to see how a newspaper could report the current event of Saturday's fixtures without reproducing it as an element of a fixture list. While this defence may not be available to the gambling sector, these arguments need to be put before the Court so that there can be certainty in this area.
In conclusion, this case can probably best be described as round six of what is likely to be a full 12-round heavyweight bout.
By Iain Connor, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM. Iain is a specialist in intellectual property disputes and is a member of the Pinsent Masons' core team for the gambling sector.
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