A recent case in the High Court has held that, although there is no database right in the annual fixture lists of the English and Scottish football leagues, such lists are protected as databases by copyright.
The decision regarding database right follows a number of ECJ cases including British Horseracing Board Ltd v William Hill Organisation. The purpose of database right is to encourage investment in particular types of data gathering. It does not protect databases such as football fixture lists where the work lies primarily in creating the data, as opposed to obtaining, verifying or presenting the data.
The purpose of database copyright is different. It is designed to encourage creative endeavour. A database is defined as an original literary work “if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.”
Mr Justice Floyd held that “author’s own intellectual creation” meant that “the author must have exercised judgement, taste or discretion (good, bad or indifferent) in selecting or arranging the contents of the database.”
This was clearly the case with the football league fixture lists. For example, there are 20 teams in the Premier League and there are a total of 380 matches just in that league. Each of those matches has to be fixed applying a series of rules known as the English Leagues’ Fixture Compilation Rules. Some of these rules are purely formal, for example the rule that no club shall have 3 consecutive home or away matches (ie no HHH or AAA). Other rules involve requests by clubs, for example Chelsea asking to play away on the date of the Notting Hill Carnival, or Newcastle asking to play its matches against Sunderland with a kick-off no later than 1.30 pm to reduce the risk of disorder amongst fans. The judge was satisfied that the whole process of creating a fixture list for each league involved “very significant labour and skill in satisfying the multitude of often competing requirements of those involved.”
The following examples were given in the judgment of databases which would not attract copyright protection:
- Telephone directories
- A list of all Acts of Parliament in the last 100 years
On the other hand a collection of the author’s 1000 favourite poems would, like the English and Scottish football league fixture lists, attract copyright.
Those creating databases in which they seek copyright protection should keep careful records of the work they put into the creation of the database, and particularly of the work which can be regarded as “selection or arrangement” of the contents of the database. In order to establish database copyright they will need to show that such work involved judgement, taste or discretion on their part.
The Judgement can be viewed here: http://www.bailii.org/ew/cases/EWHC/Ch/2010/841.html