Factual and Procedural Background
The Plaintiff parties claim ownership of various rights in the football Fixture Lists of English and Scottish leagues. The Defendant parties use these lists in their businesses but argue that no such rights exist under the law, conceding ownership only if such rights are found to subsist. The claimed rights fall into three categories: a database sui generis right under Article 7 of the Database Directive (96/9/EC), a copyright under Article 3 of the Directive, and a copyright under English statutory law independent of the Directive.
The trial Judge made detailed findings on the creation process of the Fixture Lists, concluding that it involves significant skill and judgment rather than being purely mechanistic. The process includes balancing multiple competing requirements and is not deterministic, with the quality of the final list depending on the skill and discretion of its creator. The Judge found the creative input to be substantial, exceeding that involved in simpler compilations such as CD track listings.
The trial Judge held that an Article 3 copyright right subsists, but neither a sui generis right under Article 7 nor a separate English copyright independent of the Directive subsists. The Plaintiff appealed, contending that if the Article 3 right does not subsist, then either the Article 7 right or the English copyright must subsist. The appellate court held a preliminary hearing and decided that the question of subsistence of the Article 3 right was not acte clair and required a reference to the Court of Justice of the European Union (CJEU) for clarification.
Legal Issues Presented
- What is the meaning of "databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" in Article 3(1) of Directive 96/9/EC, specifically:
- Whether intellectual effort and skill involved in creating data is excluded;
- Whether "selection or arrangement" includes adding significance to pre-existing data (e.g., fixing the date of a football match);
- Whether "author's own intellectual creation" requires more than significant labour and skill, and if so, what that entails.
- Whether the Directive precludes national copyright rights in databases other than those provided for by the Directive.
Arguments of the Parties
Plaintiff's Arguments
- The intellectual creative work involved in preparing the Fixture Lists constitutes the author's own intellectual creation under Article 3 of the Directive.
- The work involves selecting and arranging existing data (matches to be played) into a Fixture List, or alternatively, selecting matches to be played on particular dates, which is a creative and individual act.
- If no Article 3 right exists, then either a sui generis right under Article 7 or a national copyright subsists.
- Recitals 18, 26, and 27 of the Directive preserve national copyright rights in databases independently of the Directive’s new rights.
- Argued that the question of subsistence of the Article 3 right should be considered acte clair in their favour.
Defendant's Arguments
- Article 3 rights are limited to selection or arrangement of pre-existing data, and the creation of new data (such as fixing match dates) does not qualify as selection or arrangement.
- Contended that the intellectual creation involved in making the Fixture Lists is not of the right kind to attract Article 3 copyright protection.
- Argued that no sui generis right subsists in football fixture lists as established by prior CJEU rulings.
- Suggested that the Scottish Fixture Lists involved more computer use and less individual input than the English ones.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Fixtures Marketing v Oy Veikkaus, Case C-46/02 [2004] ECR I-10365 |
Clarification that the sui generis right under Article 7 protects investment in obtaining existing materials, not in creating the materials themselves. |
The court relied on this precedent to reject the existence of a sui generis right in football fixture lists. |
| Fixtures Marketing v Organismos Prognostikon, Case C-444/02 [2004] ECR I-10549 |
Same principle as above regarding the scope of the sui generis right. |
Reinforced the conclusion that sui generis rights do not subsist in created data such as fixture lists. |
| Fixtures Marketing v Svenska, Case C-338/02 [2004] ECR I-10497 |
Same principle as above regarding sui generis right scope. |
Supported the rejection of sui generis rights in football fixture lists. |
| Independent Television Publications and the BBC v Time Out [1984] FSR 64 |
Recognition that TV listings involve significant time, energy and skill. |
Used as comparative evidence of creative effort in database compilations. |
| CCE v Century Life, CA 19th December 2000 |
Commentary on the implementation of EU Directives into UK law. |
The court expressed hope for clearer legislative implementation of Directives. |
Court's Reasoning and Analysis
The court analyzed the nature of the claimed rights in light of the Directive and prior CJEU rulings. It accepted the trial Judge's factual findings that the creation of the Fixture Lists involves substantial skill and judgment beyond mere mechanical compilation. However, the court recognized that the sui generis right under Article 7 does not apply to the creation of the data itself but only to investment in obtaining existing data, as established by binding CJEU Grand Chamber decisions. Consequently, no sui generis right subsists in the Fixture Lists.
Regarding the possibility of a national copyright independent of the Directive, the court doubted that the Directive intended to preserve such rights in databases, interpreting the relevant recitals as protecting copyright in individual works contained within databases rather than the database as a whole. Nonetheless, the court included a question on this point for referral to the CJEU to resolve any residual doubt.
The central legal uncertainty concerned the scope of Article 3 copyright protection: whether the intellectual creation involved in preparing the Fixture Lists qualifies as the author's own intellectual creation by reason of selection or arrangement of contents. The court found persuasive arguments on both sides. The Plaintiff’s position that the work involves selection and arrangement of data, and the Defendant’s position that the work primarily involves creation of new data not covered by Article 3, both had merit. The court also noted that Article 3 does not require artistic skill, only intellectual creation, but the precise meaning and limits of this standard warranted clarification.
Given the importance of the issue for EU-wide harmonization and the lack of clarity, the court decided to refer specific questions on the interpretation of Article 3 and the preclusion of national rights to the CJEU. The questions were formulated succinctly to address the scope of "author's own intellectual creation," the inclusion of creation of data within "selection or arrangement," and the effect of the Directive on national copyright rights.
Holding and Implications
The court's final decision was to refer questions to the Court of Justice of the European Union for authoritative interpretation of Article 3 of Directive 96/9/EC and the effect of the Directive on national copyright rights in databases.
The court held that no sui generis right under Article 7 subsists in football fixture lists, affirming prior CJEU rulings. The trial Judge's finding that an Article 3 copyright subsists was not accepted as acte clair and requires clarification from the CJEU.
This decision means that the ultimate question of copyright protection for football fixture lists under Article 3 and national law remains unresolved pending the CJEU's ruling. No new precedent was established by this court beyond confirming the irrelevance of the sui generis right and the necessity of a CJEU reference. The ruling preserves the status quo until further EU-level guidance is provided.