Football Dataco v Yahoo!

In this case the Court of Justice of the European Communities (CJEC) dealt with the question of whether a football fixture list is protected by database copyright under the Database Directive. Earlier decisions in the CJEC had provided that football fixture lists were not protected by database rights.

What is a database? In the UK a database is legally defined in section 3A(1) of the Copyright, Designs and Patents Act 1988 (CDPA) as: “…a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.”

At common law as a general principle there is no property right in information itself – InOxford v Moss [1978] 68 Cr App Rep 183.

A database qualifies for copyright protection under the European Directive where the selection or arrangement of the data which it contains amounts to an original expression of the author’s creative freedom.

In the case of Football Dataco v Yahoo! the CJEC confirmed that effort and skill in creating the data are irrelevant.

The case also provided that where there is no originality in creating a database such as when the the creation of the database is by technical considerations, rules or constraints leaving no room for creative freedom the originality requirement will not be satisfied.

The CJEC here once again provides us with a real emphasis on required creativeness in relation to copyright subsistence in a database.

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