Intellectual Property Magazine
No copyright protection for football fixtures says EU Advocate General
United Kingdom/Europe
Khurram Aziz - News Editor
Yahoo! could be a step away from winning a case which will allow it to publish football fixture lists without paying royalties, following an opinion released by an advisor to the Court of Justice of the European Union (CJEU).
In a non-binding opinion released today, Advocate General Paolo Mengozzi says the UK firm Football DataCo cannot claim database copyright on football fixture lists because they are not an intellectual creation of their author.
Football DataCo markets and commercialises fixtures and match related data for the football leagues of England and Scotland. In 2010, the company brought an infringement case against betting companies Britten Pools and Stan James, as well as against Yahoo! and Enetpulse. These companies provide fixture list information for the English and Scottish football leagues which Foottball DataCo claims that it owns.
In its case before the High Court of England and Wales, Football DataCo said that it could charge for the reproduction of football fixture lists under the EU's Database Directive of 1996.
In May 2010, the English court ruled in favour of Football DataCo on the grounds that the lists qualified for database copyright protection because skill and judgement had been exercised in putting them together. This skill and judgement, the court held, was based on several rules incorporated in creating the fixture lists including making sure teams do not play more than a certain number of consecutive home or away matches and should not play at home when their nearest same city rival was also at home.
The defendants appealed the decision and the Court of Appeal sent several questions to the CJEU regarding whether fixture lists were protected under database copyright protection.
In his opinion, Mengozzi says that, "the mere application of effort or skill does not suffice to make a database an intellectual creation protected by the copyright".
Mark Daniels, a lawyer at Browne Jacobson LLP, said, "While [Mengozzi] did not conclude that a database of fixture lists would never attract copyright protection (for example, the particular manner of presenting the matches might constitute an original intellectual creation - perhaps through the use of colours or other graphic elements), the determination of the elements relating to each individual match is a data creation activity, not a selection or arrangement activity and so does not qualify for copyright protection."
"AG Mengozzi's Opinion, if followed by the CJEU, will be a blow to the creators of sporting fixture lists and similar databases (not least databases of TV listings and the like). Yahoo! and others will welcome the opinion. It seems that no matter how much creative effort goes into the difficult task of creating a set of sporting fixtures, copyright in the database will only subsist if the presentation of the database is also in some way creative," added Daniels.
Both Football DataCo and Yahoo! said they had no comment at this time.
The Advocate General's opinion will now be taken into consideration by the CJEU which will offer its final guidance to the UK Court of Appeal within the next six months.