Rights in Databases: Where are We Now?

January 21, 2011

The collection and exploitation of data and databases is increasingly important to modern business, indeed some business models (particularly Internet/digital media businesses) are founded entirely on these activities. One of the justifications for introducing additional protection for databases within the Database Directive (96/9/EC) was that ‘databases are a vital tool in the development of an information market within the Community; whereas this tool will also be of use in many other fields’ (Recital 9).

After the Court of Appeal recently revisited the question of how data and databases are protected in Football DataCo Limited and Others v Brittens Pools Limited and Others [2010] EWCA Civ 1380 and again referred questions to the Court of Justice of the European Union, we ask ‘what protection for databases is now available?’


English case law had previously held, in Football League v Littlewoods [1959] 1 Ch 637, that copyright could potentially protect football league fixtures under the Copyright Act 1956 (and subsequently under s 3(1) of the Copyright, Designs and Patents Act 1988) as football fixture lists may be considered compilations of data and, therefore, literary works.  In order to benefit from protection under the national copyright laws, the fixture lists were required to be ‘original’ (the threshold for which was not particularly high) and recorded on some medium.

However, the implementation of the Database Directive amended s 3(1) of the CDPA 1988 and introduced a new ‘sui generis’ database right (see Article 7 of the Database Directive (96/9/EC)), and a new category of copyright relating solely to databases (see Article 4).  The ‘sui generis’ right was introduced to protect databases where considerable effort may have been expended in the compilation, but the database was not an ‘original’ creation (ie it was made by ‘sweat of the brow‘, as opposed to intellectual creation).  The database copyright recognised that there may still be databases that did result from intellectual creation.  There is a key difference between database copyright and copyright in another form of literary work – there is a higher test of originality to be satisfied before a database can attract copyright protection: a literary work consisting of a database will be original only if ‘by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation’ (CDPA 1988, s 3A).

The Football DataCo/Britten Pools case

Football DataCo Ltd (FDC) grants licences to third parties to allow them to reproduce certain information relating to the professional football leagues of England and Scotland, including player and match data and fixtures lists. FDC brought proceedings against Brittens Pools Ltd, Yahoo! UK Ltd and Stan James (Abingdon) Ltd for publishing the English and Scottish league fixture lists on their web sites without a licence.  In bringing those claims, FDC sought to rely on a ‘sui generis’ database right, database copyright (both under the Database Directive) and literary copyright in the fixtures themselves pursuant to the CDPA 1988.

The main questions considered by the Court of Appeal were whether, as a preliminary issue, these fixture lists were protected by: (1) the ‘sui generis’ database right; (2) database copyright; and/or (3) other literary copyright.

(1) The ‘sui generis’ database right

A database will benefit from the ‘sui generis’ database right under Article 7 of the Database Directive if there is ‘substantial financial or professional investment in obtaining, verifying or presenting the content‘.

There has been some substantive case law regarding the scope of the right and its application, in particular in British Horseracing Board Ltd and others v William Hill Organisation Ltd (Case C-203/02: the BHB case) and the Fixtures Marketing cases (see Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou, Case C-444/02, Fixtures Marketing Ltd v Svenska Spel AB, Case C-338/02 and Fixtures Marketing Ltd v Oy Veikkaus Ab, Case C-46/02, 9 November 2004).

In the BHB case, following a reference to the ECJ, that court held that ‘investment in the obtaining of the contents‘ of the database referred to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used to create materials which made up the contents of a database. On the facts, it was held that the resources used by BHB to prepare a list of horses in a race did not constitute investment in the ‘obtaining of‘ the contents of the database in which that list appeared.

The alternative requirement in Article 7 that there must have been ‘investment in the verification of the contents‘ of the database was held to refer to the resources used to monitor the accuracy and reliability of the materials collected when the database was created and during its operation.  It did not cover verification during the creation of materials subsequently collected in a database. On the facts, although BHB needed to carry out a number of prior checks in order to enter a horse in a list for a race, such checks were made when the list was created and therefore amounted to investment in the creation of data, rather than in the verification of the contents of the database.

Nonetheless, the ECJ in the BHB case noted that the fact that the creator of a database was also the creator of the materials contained in it did not, of itself, preclude the creator from claiming the protection of the ‘sui generis’ database right, provided it could be established that there was substantial investment in obtaining, verifying or presenting those materials, independent of the resources used to create those materials.

The Fixtures Marketing cases considered the issue of what constituted an ‘investment’ under Article 7 and the ECJ was consistent with its judgment in the BHB case, that the expression ‘investment in the obtaining of the contents‘ of a database referred to the resources used to seek out existing independent materials and collect them in the database and not the resources used to create materials making up the contents of a database. The ECJ held that drawing up a fixture list for the purpose of organising football league fixtures was not subject to the ‘sui generis’ database right. 

In light of this prior case law, Mr Justice Floyd at first instance in the Football DataCo/Brittens Pools case held that the ‘sui generis’ database right could not exist in the fixture lists as, even though Football DataCo had made an investment in creating the data, there was no additional investment in ‘obtaining, verifying or presenting‘ the content as required under the Directive.

The claimants appealed this aspect of the judgment. However, the Court of Appeal agreed with Floyd J that the point was ‘acte clair‘ under the ECJ rulings in Fixtures Marketing. The ECJ had already made it clear that no ‘sui generis’ right existed in football fixtures and, as the ECJ’s rulings were of the Grand Chamber and were quite recent, it was improbable that the ECJ would change its mind.

(2) Database copyright

Mr Justice Floyd did, however, find that database copyright could be said to exist in the fixture lists. It was necessary for the claimants to show a degree of creative endeavour in the production of the fixture lists to attract such copyright protection.  Mr Justice Floyd was satisfied that the production of the fixture lists involved not just ‘sweat of the brow‘ work, but also skill and judgement. Judgement and discretion had been applied to the ‘selection and arrangement‘ of the data as, at each stage of the process, there was scope for the application of skill and judgement as there were some solutions which simply would not work and other solutions which would work better than others. The defendants appealed this point.

The Court of Appeal noted that the creation of the fixture lists by Football DataCo involved considerable skill and judgement. However, the question was whether the skill and judgement involved was the right kind for the purpose of Article 3 of the Directive, ie could the fixture list be said to constitute the author’s own intellectual creation?

The claimants argued that there was data consisting of all the matches to be played, which the authors then arranged into fixture lists. In the alternative, the claimants argued that the work involved selecting data by selecting the matches to be played on a particular day. However, the defendants argued that Article 3 was limited to the selection or arrangement of pre-existing data and that, in this case, the intellectual creation of the authors was in creating the data (ie allocating a date to a match, say, Arsenal v Chelsea on 26th April) and not its selection or arrangement.

In the Court of Appeal’s opinion, there was sound reasoning for both sides’ contentions and so it referred the point to the ECJ for consideration. However, the Court noted that, if the claimants were right, virtually all of the ECJ’s earlier rulings about the ‘sui generis’ right under Article 7 would be bypassed. Not only would there be rights in fixture lists, but it would probably follow that there would be rights in TV listings, following the reasoning in the Time Out case (see Independent Television Publications and the BBC v Time Out [1984] FSR 64 at 66), where it was found by the High Court that the creation of TV listings involved a ‘great deal of time, energy and skill‘.  On the other hand, the use of considerable skill and judgement in creating the fixture lists was arguably ‘arranging or selecting data‘ (ie the matches to be played) as well as creating data (fixing the dates).

The Court of Appeal also decided to refer a further point to the ECJ as to whether an ‘author’s own intellectual creation‘ required any artistic input, which on the face of the wording of Article 3 it did not.

The Court therefore referred the following questions to the ECJ on the database copyright under Article 3:

In Article 3(1) of the Directive, 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:

Should the intellectual effort and skill of creating data be excluded?

Does ‘selection or arrangement’ include adding important significance to a pre-existing item of data (as in fixing the date of a football match)?

Does ‘author’s own intellectual creation’ require more than significant labour and skill from the author, and if so what?

(3) Can there be literary copyright in a database, independent of the rights under the Database Directive?

At first instance, Floyd J held that there was no UK literary copyright in Football DataCo’s database. The claimants also appealed this point and argued before the Court of Appeal that the Directive did not preclude a database attracting literary copyright, but that it instead created two additional rights –  the new ‘sui generis’ right under Article 7 and a new database copyright under Article 3. In support of their argument, the claimants referred to the wording in the Recitals of the Database Directive, which include: 

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 right holder or his successors in title‘ (Recital 26).

The Court of Appeal very much doubted that this wording had the effect contended. As Jacob LJ noted, if the claimants were right, the key object of harmonisation across the EU would not have been achieved. The Court went on to suggest that the Recitals relied upon were merely seeking to clarify that any copyright in a work included within a database continued, unaffected by the fact that such work is included in a database. However, the Court of Appeal took the view that there was sufficient doubt about the point to warrant a referral to the ECJ.

The Court of Appeal therefore also asked the ECJ to answer the following question:

Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?


Case law has repeatedly decided that the ‘sui generis’ database right will not protect sporting fixture lists, unless it can be established that there was substantial investment in obtaining, verifying or presenting those materials, independent of the resources used to create the materials.   This remains the position.

However, the Football Dataco references to the ECJ on database copyright, and on independent literary copyright, raise the possibility that such databases will be protected.  This is potentially good news for those who own or invest in such databases, although the final position will remain uncertain until we have the ECJ’s decision on the issues (which will be many months, if not years, away).  The continued uncertainty and complexity around the scope of database right protection reinforces the criticism that the Database Directive did not achieve its objectives and that reform is required (something that was recognised by the European Commission when it reviewed the position back in 2005).

In the meantime, those who own or exploit databases are recommended to seek advice from the outset on how to best structure their data operations (both creation and collection) and investments in them, as well as the other legal and technical protections that may be available to protect their valuable assets, from confidentiality and licensing arrangements to technical measures such as access restrictions, ‘watermarking’ and ‘seeding’ the databases with false entries.

David Cran is a Partner in the IP, Technology & Outsourcing Group, Reynolds Porter Chamberlain LLP. Georgia Warren is an Associate there.