By Tom Frederikse, solicitor, Clintons
A UK court has ruled that copyright exists in annual fixture lists for football leagues in a case which will almost certainly result in licence fees being payable for publication of lists of this type. In Football Dataco Ltd (and others) v Yahoo! UK Ltd and Britten Pools (and others)  EWHC 841 (Ch) (reported 23 April), the Court found that, whilst the fixtures lists were not protected by the recently-introduced “Database Right”, they were protected by old-fashioned copyright as a “literary work”.
Football Dataco, owned by the Premier League and the Football League, had filed suit against Yahoo and the pools company for publishing fixture lists, claiming that the lists were protected either by the Database Right or as a literary copyright work and the Court was asked to rule on the “preliminary issue” of whether any (and if so what) rights legally exist in the lists.
The Database Right was introduced in 1998 as a means of protecting a pure database of information – such as a phone book – but in the 2005 case involving William Hill and British Horseracing (in the highest court in Europe) it was ruled that the Database Right was intended only to protect collections of content or information taken from other sources rather than content actually created by the compiler. Just as the lists of “runners and riders” in each race were originated by the race-setter/compiler, the individual football fixtures were created by the compiler of the fixture lists. This Court followed that result and the fixture lists were held to be not protected under the Database Right.
Yahoo had then argued that football fixture lists could not be “literary works” (for lack of “originality”) but Football DataCo responded by revealing in surprising detail exactly how the lists are created each year. It turns out that, far from being swiftly and randomly generated by computer, the Premiership lists were created largely by a man named Glenn Thompson (who works for the leagues through a contracted company) who described the process as “a mixture of art and science”. In organising the lists for each season, there are “Golden Rules” that must be followed (e.g. no club shall have 3 consecutive home or away matches, etc) and each club is allowed to make a number of special “requests” (e.g. no home game during a local street festival weekend, etc). Despite Yahoo’s argument that the lists could not be “literary” (i.e. “nobody would say ‘Hull against Arsenal in March, that is pure Glenn Thompson’ would they?”) the court ruled that there was sufficient “skill and labour” involved in producing the lists and that, as the “author’s intellectual creation” involving more than mere “sweat of the brow”, the lists were protected by copyright.
Confusingly, even as the Court ruled that the lists are not protected by the “sui generis Database Right”, the Court held that the lists are protectable by literary copyright as a “database” – though this is simply because the old copyright law used that word long before a database was commonly-viewed as anything but a set of words on a page compiled by a very patient person. Accordingly we now have two kinds of “databases” in the UK: (1) a compilation of items of content, facts or information created by others, which is protectable only by the Database Right (such as a list of all Acts of Parliament in the last 100 years); and (2) a list of items written substantially and compiled by one author or joint authors which is protectable by copyright as a “literary” work (such as the fixture lists of the English and Scottish premier and football leagues).
This case re-establishes the need for a licence to publish fixture lists (whether in print or online) and will surely have an impact on other businesses using items such as TV listings, video games about sports and other data or list-dependent products or services.
The full text of the judgment may be found via: http://www.lawtel.com/Content/Document.aspx?Content=&ID=AC0124515