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IP Cases & Commentary – Details

16 December 2011

Football Dataco Ltd and others v YAHOO! UK Ltd and others, Case C-604/10 - Advocate General Issues Opinion

The Advocate General (AG) Mengozzi’s opinion in the Football Dataco v Yahoo!UK case was issued on 15 December 2011.

This is a reference for a preliminary ruling from the Court of Appeal (England and Wales), in which the Court of Justice of the European Union (CJEU) was asked whether football league fixture lists are protectable by copyright as databases under Directive 96/9/EC on the legal protection of databases (the Directive).

In 2004, the CJEU had already held that fixture lists could not be protected by the so-called ‘sui generis’ database right, which is an ancillary right conferred on the maker of a database ‘which shows that there has been qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents’ of a database. This conclusion was reached on the basis that the making of a fixture list requires substantial investment in the ‘creation’ of the entries as opposed to obtaining, verifying or presenting them.

The key question referred to the CJEU was whether the scope of copyright protection for databases should extend to the intellectual effort and skill expended in ‘creating’ the data as opposed to simply in their ‘selection or arrangement’. In other words, should copyright protection be conferred to the pre-expressive stages of the authorial process, where the content itself of the database is created by the author?

AG Mengozzi’s conclusion was that the activities involved in the creation of the data cannot be taken into consideration when determining whether a database is eligible for copyright protection. This is because the Directive does not ‘deal with the protection of data as such’ but is aimed at encouraging ‘the creation of systems for collecting and consulting information’.

Interestingly, the AG observed obiter that there is no hierarchy between copyright protection and ‘sui generis’ protection for databases. Whilst both types of protection rely on the ‘common concept of database’ (to be construed in the same way), they must be regarded as ‘mutually independent’ and the absence of one type of protection does not automatically rule out the other.

The Court was also asked whether ‘the attribution of additional characteristics to an item already entered in a database amounts to selection or arrangement’ of the contents of the database and, therefore, makes the database eligible for copyright protection. The AG opined that all the details relating to a football match must be regarded as having been fixed by the time they are entered in the database. The selection of the details of each individual entry (teams, venue, date, etc.) is excluded from protection because it is selection at the ‘creation’ stage as opposed to the stage where the ‘fixed’ data is organised in a database.

The Court was asked whether the originality test under the Directive (ie, ‘author’s own intellectual creation’) imposes a higher hurdle than the English common law test of ‘labour and skill’. The AG found this to be the case and observed that the test under the Directive is characterised by a ‘creative’ aspect, which is not satisfied by mere ‘labour and skill’. AG Mengozzi reiterated that it is for the various national courts to determine on a case-by-case basis if a database is the expression of the ‘author’s own intellectual creation’.

Finally, the Court was asked whether the Directive precludes Member States from conferring additional protection to databases which do not meet the eligibility criteria under the Directive. The AG quickly dismissed the issue by confirming that the purpose of the Directive was to ‘harmonise the protection of databases by copyright, so that further rights cannot be conferred at national level’.

Whilst AG Mengozzi’s conclusions might be disappointing for authors of databases in the UK, they bring clarity and certainty and, hopefully, will lead to less litigation.

Useful links

Full text of AG Mengozzi's opinion


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