IP Cases & Commentary – Details
1 March 2012
CJEU Issues Ruling in Football Dataco Ltd v Yahoo! UK
Football Dataco Ltd and others v YAHOO! UK Ltd and others, Case C-604/10, 1 March 2012
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).
The CJEU essentially followed the conclusions of Advocate General Mengozzi in his Opinion of 15 December 2011 (follow link to our legal update, right).
The CJEU first reiterated that a football league fixture list does constitute a ‘database’ within the meaning of Article 1(2) of the Directive, in that it is a collection of independent materials (whereby a unit is the combination of date, time and teams for each football match) arranged in a systematic and methodical way and individually accessible by electronic or other means.
Then, the Court considered whether such lists are eligible for protection by copyright under Article 3 of the Directive. In particular, 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’.
The CJEU held that:
- the Directive grants copyright protection to the ‘structure’ of the database and not its ‘contents’, nor the elements constituting its contents;
- the concept of ‘selection and arrangement’ within the meaning of Article 3 of the Directive does not extend to the creation of the data contained in the database. In fact, the Court noted that the purpose of the Directive is to ‘stimulate the creation of data storage and processing systems in order to contribute to the development of an information market […] and not to protect the creation of materials capable of being collected in a database’;
- as far as the originality test under the Directive (ie, ‘author’s own intellectual creation’) is concerned, this is ‘satisfied when, through the selection and arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices';
- it is irrelevant whether the selection or arrangement of that data includes the addition of important significance to a pre-existing item of data, ie, it does not matter that a lot of work went into the fixing of a date for a football match; and
- therefore, it is immaterial that significant labour and skill went into the creation of the data, if that skill and labour ‘do not express any originality in the selection or arrangement of that data’.
The second question considered by the CJEU was whether the Directive must be interpreted as precluding national legislation which grants databases copyright protection under conditions different from those set out in Article 3 of the Directive. The Court concluded that, subject to the transitional provision in Article 14(2) of the Directive, Member States cannot grant databases (as defined in Article 1(2) of the Directive) protection under conditions which are different to those set out in Article 3.
Therefore, the referring Court will have to assess whether the fixture lists in question are databases by virtue of their author’s originality expressed in the selection or arrangement of the data. It is doubtful that a court will conclude that chronological and/or alphabetic arrangements of data are an adequate expression of the author’s creative ability to warrant them copyright protection under the Directive.
This also raises the question whether the finding that a fixture list is a database under Article 1(2) necessarily means that it can only be protected by copyright as such (subject to the originality test being satisfied) or whether they are also protectable as ‘compilations other than databases’, the originality test for which would be less stringent than the one under Article 3 of the Directive.