Database protection

The European Union’s Database Directive has been a somewhat troubled legal instrument. Introduced with the aim of making Europe an attractive base for database developers, it has in reality presided over a decline in global market share. The decision of the European Court of Justice in the British Horse Racing Board case  has been  seen as removing a great deal of protection from database developers. The issue came before the UK courts again in the case of  Football Dataco Ltd (and others) v. Yahoo! UK Ltd (and others). At issue here were the fixture lists created on behalf of the English and Scottish football associations.

Creation of a fixture list scheduling all matches over the course of a season is a fairly complex task. A variety of factors have to be taken into account including, for example, the undesirability (and often impracticability in policing terms) of two major teams in the same city playing at home on the same day. The  creators of the fixture lists complained that the defendants were reusing their data without making payment.

Before the High Court it was held that whilst there could be no protection under the Database  Directive, the fixture lists could be protected under copyright law on the basis that the developers of the fixture lists had expended intellectual effort in their creation.  The Court of Appeal was not convinced and referred two questions to the European Court of Justice:

1. In Article 3(1) of Directive 96/9 … what is 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) does “selection or arrangement” include adding important significance

to a pre-existing item of data (as in fixing the date of a football match),

and

(c) does “author’s own intellectual creation” require more than significant

labour and skill from the author, if so what?

2. Does the Directive preclude national rights in the nature of copyright in

databases other than those provided for by [Directive 96/9]?

The answer has now been given and appears fairly emphatic – and negative to the claimants. The beginnings of the judgment perhaps gave rise for some optimism:

it is apparent from both a comparison of the terms of Article 3(1) and Article 7(1) of Directive 96/9 and from other provisions or recitals of Directive 96/9, in particular Article 7(4) and recital 39 to that directive,  that the copyright and the ‘sui generis’ right amount to two independent rights whose object and conditions of application are different.

Consequently, the fact that a ‘database’ within the meaning of Article 1(2) of Directive 96/9 does not satisfy the conditions of eligibility for protection by the ‘sui generis’ right under Article 7 of Directive 96/9, … does not automatically mean that that same database is also not eligible for copyright protection under Article 3 of that directive.

The remainder of the judgment is less positive. Essentially the finding is that in order for copyright protection to be available, there needs to be elements of originality in respect of the selection of the underlying data. In respect of claims to database copyright, the court ruled  that:

As regards the setting up of a database, that criterion of originality is satisfied

when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices

 By contrast, that criterion is not satisfied when the setting up of the database is

dictated by technical considerations, rules or constraints which leave no room for

creative freedom

There is perhaps room for argument where the boundary lies between situations where there is ‘no room for creative freedom’ and limited room.  It is a frequent complaint amongst football people that a fixture list displays prejudice in favour of opposing teams. There is possibly a dilemma in that if a fixture list is drawn up on the basis of free will and prejudice that it might be protected by copyright but that if more objective considerations prevail there will be no protection.. Legally perhaps correct but I doubt whether many football fans would agree – unless their team is the beneficiary.

In any event, perhaps another nail in the coffin of the utility of the database directive.