The European Court of Justice has issued a ruling in relation to copyright protection of databases that could have serious consequences for Football Dataco, the company that manages (amongst other things) the licensing of football fixture lists for the Premier League and the Football League.
Each year a complicated process is undertaken to plot the season’s fixtures according to a set of “golden rules” – for instance, that no club should have three consecutive home and away matches, in any five consecutive matches no club should have four home or away matches, all clubs should have played as far as possible an equal number of home and away matches at any given point in the season, and an equal number of mid-week matches for each club should be home or away matches. The resulting process therefore involves a large amount of information crunching, as well as liaison with the clubs and other interested parties such as the Police, whose resources are needed to police the matches. The job involved therefore is clearly highly skilled and involves a considerable amount of judgement and discretion.
The resulting fixture lists have a value to news media, betting companies and a multitude of publications in all media, and under the regime administered by Football Dataco have been made available on payment of fees. Those who have reproduced the lists or extracts from them without paying the required fees have been treated as infringing intellectual property rights.
Two principal intellectual property rights have been invoked. The first, the so-called “database right”, arises when there has been a substantial investment in obtaining, verification or presentation of the contents of the database concerned. When that right arises it protects the owner of the database from unauthorised extraction or re-utilisation of the whole or a substantial part of the database. Authorities of the European and English courts have already determined that the football fixture lists in question here are not protected by that right.
The latest ruling suggests strongly that copyright protection likewise will be unavailable. As this is a reference to the Court of Justice it does not determine facts finally, so there is the possibility for more developments. However, the Court of Justice has ruled that for all the skill and judgement involved in the process of generating the fixtures that does not qualify them for copyright protection under the relevant Database Directive (Directive 96/9) on the following basis. The Directive requires for protection to exist that the author of the database has made an original expression of his or her creative freedom in the selection or arrangement of the data which the database contains, rather than merely used skill and judgement to navigate around technical considerations, constraints or rules.
There will doubtless be much learned debate on the issue, but the simple issue that faces those involved in creating these fixture lists is the potential loss of a considerable income stream that is passed on to the clubs. In the grand scheme of things the loss to the game may not be huge, but it adds to the financial squeeze many clubs and participants in the game are experiencing.