FDL put together the schedule of football fixtures for English and Scottish premier and football leagues. Brittens commercially exploited the fixture lists, allegedly without a licence from FDL. This trial of preliminary issues involved whether doing so would infringe FDL’s intellectual property rights. Database rights protect databases where there has been substantial investment in obtaining, verifying or presenting the database. It had already been ruled in a 2004 case in the European Court of Justice (British Horseracing Board v William Hill) that the money incurred in creating the core data (as opposed to obtaining, verifying or presenting it from another source) did not count towards the investment threshold required. The High Court reinforced that point again and ruled that database rights did not protect FDL here.
However, the High Court said that FDL benefited from having database copyright in creating the underlying fixture list. Unlike other forms of copyright which protect any creative work which involves ‘sweat of the brow’, database copyright needs to have the higher standard of constituting the author’s ‘intellectual creation’ in order to benefit from protection. The High Court ruled that in order to determine whether database copyright applied, you had to identify the relevant data at the heart of the database, analyse the work going into the creation of the database by collecting and arranging the data, consider whether the selection and arrangement was the author’s own intellectual creation and particularly whether it involved the author’s own judgement, and ask whether the work was big enough to attract copyright protection.
Those criteria were satisfied here. FDL spent considerable time and money in a long and complex process by which FDL communicated with the different clubs and others (such as the police) and consulted other events to ascertain the possible permutations for holding particular fixtures on particular dates. Although the computer selected particular fixtures at random, there was clearly a lot of intellectual creation expended by FDL in collecting and arranging the underlying data which formed the fixture list.
Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This decision will come as a massive relief to anyone who invests a lot of time and money in creating their own data. The 2004 case had cast doubt on the ability of people to protect databases where they spend a lot of time and money compiling the underlying data rather than the database. This case shows that many databases may qualify to obtain database copyright protection even if the separate database right is not available.’