Can football fixture lists be regarded as intellectual property?

The tentacles of copyright law reach increasingly far. Within living memory, it seemed a dusty and specialist corner of the law, unlikely to touch the lives of most people, for whom the opportunity to commit any sort of copyright infringement was unlikely to occur. Gradually, however, a combination of technological advances (the photocopier, cassette and video recorders, computers and the internet) and legal developments that have extended copyright in various ways have vastly increased its reach and scope.

Case C-604/10 Football Dataco Ltd (Third Chamber, 1 March 2012) is the latest case to consider one fairly recent innovation in intellectual property law: the copyright and database right created by directive 96/9/EC.

Working out which team will play which team on which date, and whether at home or away, requires a lot of work on the part of the various football leagues. The bodies that draw up these lists claimed a copyright in the resulting lists under article 3 of the directive, which provides that 'databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright'. They also claimed a sui generis under article 7 of the directive, which provides a right for the maker of a database to prevent extraction or re-use of the database, but only if he shows that there has been 'qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents'.

The real problem was that putting together the fixture list in the sense of deciding which team should play which team on which date certainly involved intellectual work. But putting together the fixture list in the sense of recording what team was going to play when did not. The effort was in creating the information that was recorded, and not in assembling or recording it, as such.

The Court of Appeal ([2010] EWCA Civ 1380) rejected the claim under the sui generis right conferred by article 7 of the directive. It did so because a number of earlier ECJ decisions had already held that this right did not protect football fixture lists (Case C-46/02 Fixtures Marketing [2004] ECR I-10365, among other cases). That was on the basis that, for the purposes of article 7, the investment had to be in obtaining, or verifying, or presenting data: not in creating it. But it remained open to question whether the same approach should be taken to the copyright conferred by article 3. Could it be said that the 'selection or arrangement' of the contents of a database could permit a database to be treated as the author's 'intellectual creation', so as to attract copyright, where the key creative contribution was in producing the data in the first place? That question was referred to the ECJ.

Personal touch

Although the ECJ left the final decision to the national court, its comments were not encouraging for the claimant. Selection and arrangement, the ECJ said, 'do not extend to the creation of data'. So, although it was correct that the copyright conferred by article 3 and the sui generis right conferred by article 7 were separate and each could stand alone, in theory, neither is intended to protect those who create data; both are concerned with those who assemble and organise data that already exists. The difference is that article 7 protects investment of resources in collecting and organising data, whereas article 3 protects originality: the person who arranges data in such a way as to stamp it with, as the ECJ put it, a 'personal touch'.

And, as the ECJ pointed out, not every arrangement can be regarded as having been given a personal touch. If the arrangement is dictated by the data itself, or by technical considerations, it cannot be regarded as original. Such an assembly will be protected, if at all, under article 7, and not as copyright. Although the ECJ did not say so, it is likely that (most) versions of a fixture list fall into that category. Given a list of dates and planned events, a chronological listing of those events is unlikely to be regarded as original even in the most extended sense.

However, it is not necessary that the arrangement and selection (if it is original) adds anything to the data itself. The data can remain the data. What is being protected is the originality in the way that data is being arranged.

So, three principles emerge. First, the database rights (both copyright and the sui generis right under article 7) are about how data is assembled and arranged '“ not about its creation. The care and intellectual effort that goes into creating data is irrelevant. Second, the difference between the copyright and the sui generis rights is that the former protects original arrangements whereas the latter protects even 'obvious' arrangements, provided an investment of resources was required to obtain, verify or present the data. Third, however, no amount of plodding effort will count as originality so as to confer copyright under article 3. For the purposes of article 3 it is originality alone that matters.

On the whole, the judgment is a reasoned and narrow interpretation of the directive, which is good news. We are now surrounded with intellectual property, and the promiscuous creation of rights to monopolise information as such is unlikely to operate in the public interest.