The Court of Appeal’s judgment in the case of Football Dataco Ltd and Ors v Yahoo! UK Ltd [2010] EWCA Civ 1380 has been published. Consideration of the major questions raised has resulted in a series of questions that are to be referred to the Court of Justice of the European Union.
The case is an appeal from the High Court ruling of Mr Justice Floyd ([2010] EWHC 841 (Ch)).
Football Dataco and various others, including the FA Premier League Ltd and the Scottish Premier League Ltd, alleged that between them they own rights, of one type or another, in the football fixture lists of the English and Scottish leagues. The defendants, which include the betting organisation Stan James plc, claim that they need to use those lists in the conduct of their businesses. They say they are entitled to do so without paying because the law does not create rights of any of the claimed types. They concede that if there were any such rights, the claimants would own them.
The three sorts of right claimed are:
(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 judgment is admirably short and the questions to be asked of the ECJ are, unlike the questions normally sent, comprehensible. They are as follows:
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?
