Database Rights and Football Fixtures

A High Court case has decided that there are no database rights in fixure lists for English and Scottish football leagues but instead they do benefit from copyright protection.

The process of creating fixture lists initially seems compllicated due to the number of factors to consider for example no team can play 3 consecutive home or away matches, certain teams are linked so that they cannot play at home on the same day for example South coast rivals Southampton and Portsmouth, clubs request that certain matches kick off early for example Swansea v Cardiff matches, clubs request that they don’t play at home when particular events are on for example Chelsea do not play at home when the Notting Hill carnival is on and other rules such as trying to avoid long travelling distances on Boxing Day etc. However at a basic level all it requires is to fit 20 teams (for the Premier League) who play 380 matches into a programme of fixtures.

In this case the Football League, Scottish Football League, FA Premier League, Scottish Premier League and some of their licensees brought an action against football pools and betting companies who had used the fixture lists without the relevant permissions. The question before the court was whether or not the fixture lists were protected by database rights, copyright or not protected at all. The decision relied on the case of British Horseracing Board Ltd v William Hill Organisation in that the purpose of a database right is to encourage investment in certain types of data gathering. Football fixture lists were not considered to be covered by this as they involve a lot of work in creating the data rather than verifying and presenting the data.

Contrast this then to the database protection offered by copyright which is designed to protect creative endeavour. A database will be a literary work under the CDPA 1988 “if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation”.

According to Mr Justice Floyd, in order to establish a database as the “author’s own intellectual creation” “the author must have exercised judgement, taste or discretion (good, bad or indifferent) in selecting or arranging the contents of the database).

He gave the following steps that must be established in showing database copyright:

“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 judgement, taste or discretion;

iv) Finally one should ask whether the work is quantitatively sufficient to attract copyright protection”.

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