Football Dataco Ltd and Others v Brittens Pools Ltd (In Action 3222) and Others: ChD 23 Apr 2010

The court considered what rights existed in the annual football fixture lists created by the claimants. The claimants said that the list was created only with a considerable effort applying certain rules. The defendants denied that any copyright existed.
Held: The process involved considerable effort and was not deterministic. The Directive seeks to harmonise copyright protection for systematically arranged, individually accessible collections of independent works, data or other materials. Selection or arrangement of the contents of a database are notions which are clearly separate from mere non-selective gathering of information.
Notions appropriate to sui generis right may not apply automatically to the database copyright. Article 3 harmonises a particular copyright. The purpose of copyright is to provide encouragement for creative endeavour, and differs in that respect from the sui generis right which is designed to encourage investment in particular types of data gathering . . the selection or arrangement required by Article 3(1) is not confined to selection or arrangement performed after the data is finally created. The process of selection and arrangement of the contents of a database can and often will commence before all the data is created. I see no reason why selection decisions made about the contents of the database in the course of arriving at the final version should not properly be described as selection or arrangement. To cut out from consideration these selection decisions, merely because they occur whilst the database is being created, seems to me to be arbitrary, and conceptually fraught with difficulty.
Floyd J said that the court’s task is to:
i) Identify the data which is collected and arranged in the database;
ii) Analyse the work which goes into the creation of the database by collecting and arranging the data so identified, to isolate that work which is properly regarded as selection and arrangement;
iii) Ask whether the work of selection and arrangement was the author’s own intellectual creation and in particular whether it involved the author’s judgment, taste or discretion;
iv) Finally one should ask whether the work is quantitatively sufficient to attract copyright protection.
On the facts, although the overall list of matches in any league is ultimately a given, there is undoubted selection and arrangement in the choice of dates and the decisions as to which match is played on which date, and the Fixture Lists are the subject of database copyright, but not otherwise in copyright or sui generis database right.

Floyd J
[2010] EWHC 841 (Ch), [2010] ECC 31, [2010] RPC 17, [2010] 3 CMLR 25
Copyright Designs and Patents Act 1988 3A, Copyright and Rights in Databases Regulations 1997 (SI 1997/3032), European Parliament and Council Directive 96/9/EC on the Legal Protection of Databases
England and Wales
CitedFootball League Limited v Littlewoods Pools ChD 1959
The plaintiff alleged copyright infringement by the defendant in the reproduction of its football fixture lists. The defendant argued that the work which went into deciding when and where the fixtures were to take place was not relevant: the only . .
CitedLadbroke (Football) Ltd v William Hill (Football) Ltd HL 1964
What is substantial copying
The plaintiff alleged copying of their football pools coupons and copyright infringement. The issues were as to the extent of copying required to establish infringement, and whether it was proper to look at the several parts of the work separately. . .
CitedBritish Horseracing Board Ltd and Another v William Hill Organization Ltd CA 13-Jul-2005
The Court allowed William Hill’s appeal, holding that BHB had not established that the ECJ had given its earlier ruling on the basis of an erroneous assumption of fact and that the result of applying the ruling was that BHB’s Database did not fall . .
CitedFixtures Marketing v Oy Veikkaus Ab ECJ 9-Nov-2004
Europa Directive 96/9/EC – Legal protection of databases – Sui generis right – Definition of investment in the obtaining, verification or presentation of the contents of a database – Football fixture lists – . .
CitedThe British Horseracing Board Ltd and Others v William Hill Organization Ltd ECJ 9-Nov-2004
The claimant sought to prevent re-use by the defendant of information from its horse racing subscription service. They claimed that they had a database right in the information. It cost andpound;4m per year to assemble.
Held: The expression . .
CitedPharma Intranet Information AG v IMS Health GmbH and Co. OHG 2005
(Oberlandesgericht Frankfurt) The court asked whether a database produced by the claimant for the pharmaceutical market containing figures for revenue and sales development for medicines sold in Germany, was protected by copyright. The data was . .
CitedInfopaq International v Danske Dagblades Forening ECJ 12-Feb-2009
ECJ (Opinion) Directive 2001/29 – Articles 2 and 5 – Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Exceptions and limitations – Temporary acts . .
CitedInfopaq International v Danske Dagblades Forening ECJ 17-Jul-2009
ECJ Copyright Information society – Directive 2001/29/EC Articles 2 and 5 – Literary and artistic works – Concept of ‘reproduction’ Reproduction ‘in part’ Reproduction of short extracts of literary works – . .
See AlsoFootball Dataco Ltd and Others v Brittens Pools Ltd and Others ChD 26-Nov-2009
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Cited by:
Appeal fromFootball Dataco Ltd and Others v Yahoo! UK Ltd and Others CA 9-Dec-2010
The claimants asserted ownership of copyright in football fixture lists as a database right. The defendant denied that they attracted any such right. The judge had found that significant skill and labour went into the preparation of the list.
Intellectual Property, European

Updated: 01 November 2021; Ref: scu.408669