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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Football Dataco Ltd & Ors v Yahoo! UK Ltd & Ors [2010] EWCA Civ 1380 (09 December 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/1380.html Cite as: [2011] ECDR 9, [2010] EWCA Civ 1380, [2011] RPC 9 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(INTELLECTUAL PROPERTY)
The Hon Mr Justice Floyd
Strand, London, WC2A 2LL |
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B e f o r e :
THE RT HON LORD JUSTICE HOOPER
and
THE RT HON LORD JUSTICE RIMER
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(1) ![]() ![]() (2) The ![]() ![]() (3) The ![]() ![]() (4) The Scottish Premier League Ltd (5) The Scottish ![]() ![]() (6) PA Sport UK Ltd |
Respondents/Claimants-Cross-Appellants |
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- and - |
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(1) YAHOO! UK Ltd (2) Stan James (Abingdon) Ltd (3) Stan James plc (4) Enetpulse APS |
Defendants/Appellants/Cross-Respond-ents |
____________________
for the Respondents/Claimants/Cross-Appellants
Richard Meade QC and Philip Roberts (instructed by Olswang)
for the Defendants/Appellants/Cross-Respondents
Hearing date: 25 November 2010
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Crown Copyright ©
Lord Justice Jacob:
(1) A database "Sui Generis Right" pursuant to Art. 7 of the Database Directive (96/9/EC) ("the Directive");
(2) A copyright pursuant to Art. 3 of the Directive (an "Art. 3 right");
(3) A copyright under English statutory copyright law which, it is said, can subsist even if neither of the first two types subsists.
The facts
[41] I conclude that the process of preparing the Fixture Lists, whether in England or in Scotland remains one which involves very significant labour and skill in satisfying the multitude of often competing requirements of those involved. Mr Meade was obliged to accept in the light of the evidence that the process was not entirely deterministic.
[42] The process is therefore not one where everyone would come up with the same answer. Some solutions will better accommodate the requirements of the clubs and rules than others. The more sophisticated the compilation process, the more permutations it will be able to consider and the more requirements it will be able to satisfy. Judgments have to be taken as to the relative importance of certain rules in comparison to others. On occasions rules will have to be broken.
[43] This work is not mere "sweat of the brow", by which I mean the application of rigid criteria to the processing of data. It is quite unlike the compiling of a telephone directory, in that at each stage there is scope for the application of judgment and skill. Unlike a "sweat of the brow" compilation, there are some solutions which will simply not work, and others which will be better. Mr Thompson explained that it might be the case that the computer would say that there was no solution for a given set of constraints. The quality of the solution depends in part on the skill of those involved.
[44] Mr Meade suggested that although the exercise was not in fact completely computerised, the exercise was one which could be performed by a computer. Mr Thompson did not accept this. There were aspects where the computer is used as a tool (more extensively in the lists prepared by Mr Stone and Optimal [the Scottish lists]), but the use of the computer does not eliminate the use of judgment and discretion.
The Legislation
The Proceedings and contentions so far
A Sui Generis Right?
'investment in ... the obtaining ... of the contents' of a database in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organisingfootball
league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.
A database copyright independent of the Directive?
i) Recital 18 contains the words "whereas the protection of databases by the sui generis right is without prejudice to the existing rights over their contents".
ii) Recital 26 says:
Whereas works protected by copyright and subject matter protected by related rights, which are incorporated into a database, remain nevertheless protected by the respective exclusive rights and may not be incorporated into, or extracted from, the database without the permission of the rightholder or his successors in title.
iii) Recital 27 says:
Whereas copyright in such works and related rights in subject matter thus incorporated into a database are in no way affected by the existence of a separate right in the selection or arrangement of these works and subject matter in a database.
The Art. 3 Point:
The rival contentions
Why we think a reference is necessary
The Questions
1. In Article 3(1) of Directive 96/9/EC on the legal protection of databases 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);
(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 the Directive?
Lord Justice Hooper:
Lord Justice Rimer: