European Communities - Database rights - Infringement

Football Dataco Ltd and other companies v Yahoo! UK Ltd and others: Court of Justice of the European Communities (Third Chamber) (Judges Lenaerts (Rapporteur), president of the Chamber, Malenovský, Juhász, Arestis and Šváby): 1 March 2012

The applicants were companies connected with the creation of fixture lists of the football leagues in England and Scotland. They claimed that they owned, in respect of the English and Scottish football league football fixture lists, a 'sui generis' right pursuant to article 7 of EC Directive 96/9 (on the legal protection of databases) (the Directive). They further contended that they were entitled to a copyright pursuant to article 3 of the Directive and a copyright under UK intellectual property legislation. A dispute arose between the applicants and the defendants, who contended that such rights did not exist in law and argued that they were entitled to use the lists in the conduct of their businesses without having to pay financial compensation. The English court found that the lists were eligible for protection under article 3 of the Directive, but refused to recognise either of the other two rights claimed. The Court of Appeal submitted two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

The two questions referred were: (i) In article 3(1) of the Directive, what was meant by 'databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation' and in particular: (a) should the intellectual effort and skill of creating data be excluded; (b) whether 'selection or arrangement' included adding important significance to a pre-existing item of data (as in fixing the date of a football match); and (c) whether the 'author's own intellectual creation' required more than significant labour and skill from the author, and if so, what; and (ii) whether the Directive precluded national rights in the nature of copyright in databases other than those provided for by the Directive. Consideration was given to C-444/02 Fixtures Marketing [2004] ECR I-10549 (Fixtures Marketing).

The court ruled: (1) The CJEU had previously ruled that a football league fixture list constituted a 'database' within the meaning of article 1(2) of the Directive (see Fixtures Marketing). However, it was clear from a comparison of the terms of articles 3(1) and 7(1) of the Directive and from other provisions or recitals of the Directive, that the copyright and 'sui generis' right amounted to two independent rights whose object and conditions of application were different. It was apparent from reading article 3(2) of the Directive in conjunction with Recital 15 that the copyright protection provided for by that Directive concerned the structure of the data base and not its contents, nor, therefore, the elements constituting its contents.

Similarly, as apparent from article 10(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights and article 5 of the WIPO Copyright Treaty, compilations of data which constituted intellectual creations were protected as such by copyright. However, that protection did not extend to the data itself. In that context, the concepts of 'selection' and 'arrangement' within the meaning of article 3(1) of the Directive referred respectively to the selection and arrangement of data, and not to the creation of the data in that database (see [26]-[31] of the judgment).

The answer to the first question would be that article 3(1) of the Directive had to be interpreted as meaning that a 'database' within the meaning of article 1(2) of that Directive was protected by the copyright laid down by that Directive provided that the selection or arrangement of the data which it contained amounted to an original expression of the creative freedom of its author, which would be a matter for the national court to determine. The intellectual skill and effort of creating data would not be relevant in order to assess the eligibility of that database for protection by that right. It was irrelevant, for that purpose, whether or not the selection or arrangement of that data included the addition of important significance to that data (see [45] of the judgment).

British Horseracing Board Ltd v William Hill Organisation Ltd: C-203/02 [2004] All ER (D) 146 (Nov) considered; Fixtures Marketing Ltd v Oy Veikkaus: C-46/02 [2004] All ER (D) 151 (Nov) considered; Infopaq International A/S v Danske Dagblades Forening: C-5/08 [2009] All ER (D) 212 (Aug) considered; Bezpecnostni softwarova asociace - Svaz softwarove ochrany v Ministerstvo kultury: C-393/09 [2010] All ER (D) 309 (Dec) considered; Football Association Premier League Ltd v QC Leisure: C-403/08 and C-429/08 [2011] All ER (D) 26 (Oct) considered.

(2) The Directive aimed, according to recitals 1 to 4 of the Directive, to remove the differences which existed between national legislation on the legal protection of databases, particularly regarding the scope and conditions of copyright protection, and which adversely affected the functioning of the internal market, the free movement of goods or services within the European Union and the development of an information market within the EU (see [48] of the judgment).

Subject to the transitional provision in article 14(2) of the Directive, that Directive precluded national legislation which granted databases copyright protection under conditions different to those set out in article 3(1) of the Directive (see [52] of the judgment).