No. 26
September 2012
International Association for the Protection of Intellectual Property
AIPPI General Secretariat |Toedistrasse 16 | P.O.Box |CH-8027 Zurich
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No copyright for football fixture lists
Barbara Sartori - Luca Ferrari, with the cooperation of Anna Bonan, CBA Studio Legale e Tributario, Padova, Italy

With its judgment of 1st March 2012 the European Court of Justice (ECJ) definitively dashed the hopes of those who were “betting” on the existence of legal protection for football fixture lists (scheduling and match compositions) under the database copyright protections that are established by Art. 3(1) of EU Directive 96/9.

Football DataCo is a company that, on behalf of the English and Scottish professional football leagues, manages and markets their fixtures and match related data. Football DataCo sued Yahoo!UK and certain sports betting agencies, claiming a database copyright infringement for unauthorized economic exploitation of the information contained in the annual fixture lists arranged by the leagues. The case was brought in the English High Court and was later referred to the ECJ by the English Court of Appeal.

The European Database Directive sets forth two levels of database protection. The first involves the database architecture as an expression of its author's intellectual work, the proper “database copyright” under Art. 3. The second one, which requires the database creator to make a substantial investment either in obtaining, or in verifying or presenting the data, protects the database contents from unauthorised extraction or re-utilization, the so called “sui generis database right” under Art. 7.

In its claim against Yahoo!UK, Football DataCo asserted that both levels of protection apply to football fixture lists. The English High Court, ruled out the eligibility of fixture lists for protection by the sui generis right based on the former case-law of the ECJ[1], but it did hold that the act of selection and arrangements of clubs, dates and matches, implies sufficient judgement and discretion from its author, to be considered as “the author's own intellectual creation”.

Upon appeal, the matter was referred to the ECJ which was asked to clarify the requirements for the database legal protection granted by the Directive 96/9 with reference to fixture lists.

This recent decision of the ECJ puts an end to the querelle, stating that “a database is protected by the copyright laid down by that directive provided that the selection and arrangement of the data which it contains amounts to an original expression of the creative freedom of its author”. In this regard, it is not sufficient that the creator of the database has put significant labour and skill in the elaboration of the relevant data “if that labour and that skill do not express any originality in the selection or arrangement of that data”. The ruling of the ECJ is clear and leaves limited leeway for interpretation by the referring judge.

The ECJ, in response to the second preliminary question, questioned the validity of any national legislation which grants databases copyright protection without regard to the requirement of originality, specifying that such a requirement must be interpreted and applied in accordance with Art. 3(1) of the Directive 69/9. This landmark decision was delivered just after the launch of a licensing system created by the German Football League (DFL), which appears to be based on the assumption that there is an exclusive intellectual property right in fixture lists.

In the light of the ECJ's decision and in the absence of any ad hoc legislation, the European football leagues must look to devise new solutions for demanding the payment of royalties from anyone - in primis from betting agencies – who directly or indirectly commercially exploit football fixture lists.

  • The Court of Justice held that the resources used to establish the dates, times and the team pairings for the various matches in the league, even if investing in the creation of materials which make up the contents of a database, do not constitute, as required by Art. 7 of Directive 96/9, an investment in obtaining, verifying and presenting them. (ECJ, judgments of 9.11.2004, Fixture Marketing , C-46/02, C-338/02, C-444/02)

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