Football Dataco Ltd and Others v Yahoo! UK Ltd and Others.
Date: 2012-03-01
20. Football Dataco and Others claim that they own, in respect of the English and Scottish football league fixture lists, a ‘sui generis’ right pursuant to Article 7 of Directive 96/9, a copyright pursuant to Article 3 of that directive, and a copyright under United Kingdom intellectual property legislation.
26. First of all, it is to be noted that, on the one hand, the Court has already held that a football league fixture list constitutes a ‘database’ within the meaning of Article 1(2) of Directive 96/9. The Court essentially held that the combination of the date, the time and the identity of the two teams playing in both home and away matches has autonomous informative value which renders them ‘independent materials’ within the meaning of Article 1(2) of Directive 96/9, and that the arrangement, in the form of a fixture list, of the dates, times and names of teams in the various fixtures of a football league meets the conditions set out in Article 1(2) of Directive 96/9 as to the systematic or methodical arrangement and individual accessibility of the data contained in the database (see Case C‑444/02 Fixtures Marketing [2004] ECR I‑10549, paragraphs 33 to 36).
28. Consequently, the fact that a ‘database’ within the meaning of Article 1(2) of Directive 96/9 does not satisfy the conditions of eligibility for protection by the ‘sui generis’ right under Article 7 of Directive 96/9, as the Court held in relation to football fixture lists (Case C‑46/02 Fixtures Marketing [2004] ECR I‑10365, paragraphs 43 to 47; Case C‑338/02 Fixtures Marketing [2004] ECR I‑10497, paragraphs 32 to 36; and Case C‑444/02 Fixtures Marketing , cited above, paragraphs 48 to 52), does not automatically mean that that same database is also not eligible for copyright protection under Article 3 of that directive.
34. That analysis is confirmed by the purpose of that directive. As is apparent from recitals 9, 10 and 12 of that directive, its purpose is to stimulate the creation of data storage and processing systems in order to contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity (see Case C‑46/02 Fixtures Marketing , cited above, paragraph 33; Case C‑203/02 The British Horseracing Board and Others  [2004] ECR I‑10415, paragraph 30; Case C‑338/02 Fixtures Marketing , cited above, paragraph 23; and Case C‑444/02 Fixtures Marketing , cited above, paragraph 39) and not to protect the creation of materials capable of being collected in a database.
35. In the case in the main proceedings, it must be observed that the resources, in particular intellectual resources, described by the referring court and referred to in paragraphs 14 to 18 of this judgment, are deployed for the purpose of determining, in the course of arranging the leagues concerned, the date, the time and the identity of teams corresponding to each fixture of those leagues, in accordance with a set of rules, parameters and organisational constraints as well as the specific requests of the clubs concerned (see Case C‑46/02 Fixtures Marketing , cited above, paragraph 41; Case C‑338/02 Fixtures Marketing , cited above, paragraph 31; and Case C‑444/02 Fixtures Marketing , cited above, paragraph 47).
36. As Yahoo and Others and the Portuguese government have pointed out, those resources relate to the creation of the same data which is contained in the database in question, as already noted in paragraph 26 of the present judgment (see Case C‑46/02 Fixtures Marketing , cited above, paragraph 42; Case C‑338/02 Fixtures Marketing , cited above, paragraph 31; and Case C‑444/02 Fixtures Marketing , cited above, paragraph 47). As a consequence, and having regard to what is stated in paragraph 32 of the present judgment, they are, in any case, of no relevance in order to assess the eligibility of the football fixture lists in question in the main proceedings for the copyright protection provided for by Directive 96/9.
37. Secondly, as is apparent from recital 16 of Directive 96/9, the notion of the author’s own intellectual creation refers to the criterion of originality (see, to that effect, Case C‑5/08 Infopaq International [2009] ECR I‑6569, paragraphs 35, 37 and 38; Case C‑393/09 Bezpečnostní softwarová asociace  [2010] ECR I‑0000 paragraph 45; Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others  [2011] ECR I‑0000, paragraph 97; and Case C‑145/10 Painer [2011] ECR I‑0000, paragraph 87).
38. As regards the setting up of a database, that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices (see, by analogy, Infopaq International , paragraph 45; Bezpečnostní softwarová asociace , paragraph 50; and Painer , paragraph 89) and thus stamps his ‘personal touch’ ( Painer , paragraph 92).
39. By contrast, that criterion is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom (see, by analogy, Bezpečnostní softwarová asociace , paragraphs 48 and 49, and Football Association Premier League and Others , paragraph 98).
48. In that respect, it must be pointed out that Directive 96/9 aims, according to recitals 1 to 4 of the directive, to remove the differences which existed between national legislation on the legal protection of databases, particularly as regards the scope and conditions of copyright protection, and which adversely affected the functioning of the internal market, the free movement of goods or services within the European Union and the development of an information market within the European Union.