Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou AE (OPAP).
Date: 2004-11-09
12. It must be recalled that according to settled case-law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (Case C-67/96 Albany  [1999] ECR I-5751, paragraph 39).
13. The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also enable the governments of the Member States and other interested parties to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that possibility is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties ( Albany , cited above, paragraph 40).
19. A database in the terms of the directive is defined in Article 1(2) as ‘a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’.
20. As both Fixtures and the Commission submit, there are several indications of the intention of the Community legislature to give the term database as defined in the directive, a wide scope, unencumbered by considerations of a formal, technical or material nature.
21. For instance, according to Article 1(1) of the directive, it concerns the legal protection of databases ‘in any form’.
22. Although the proposal for a Council Directive on the legal protection of databases  (OJ 1992 C 156, p. 4), presented by the Commission on 15 April 1992 concerned exclusively electronic databases according to the definition of database contained in Article 1(1) of that proposal for a Directive, it was agreed in the course of the legislative process, that ‘protection under this Directive should be extended to cover non-electronic databases’, according to the 14th recital of the preamble to the directive.
23. According to the 17th recital of the preamble to the directive, ‘the term “database” should be understood to include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts, and data’. The fact that the data or information at issue relate to a sporting activity thus does not preclude the database from being recognised as such in the terms of the directive.
24. Whereas, in its opinion of 23 June 1993 on the Commission proposal for a Council directive on the legal protection of databases (OJ 1993 C 194, p. 144), the European Parliament had suggested defining a database as a collection of a ‘large number’ of data, works or other materials, that condition no longer appears in the definition in Article 1(2) of the directive.
25. For the purposes of determining whether there is a database within the meaning of the directive, it is irrelevant whether the collection is made up of materials from a source or sources other than the person who constitutes that collection, materials created by that person himself or materials falling within both those categories.
26. Contrary to the contentions of the Greek and Portuguese Governments, nothing in the directive points to the conclusion that a database must be its maker’s own intellectual creation to be classified as such. As the Commission points out, the criterion of originality is only relevant to the assessment whether a database qualifies for the copyright protection provided for by Chapter II of the directive, as is clear from Article 3(1) and from the 15th and 16th recitals of the preamble to the directive.
27. Against the background of a wide interpretation various aspects of the directive demonstrate that the term database within the meaning thereof is more specifically defined in terms of its function.
28. A reading of the recitals of the preamble to the directive reveals that, given the ‘exponential growth, in the Community and worldwide, in the amount of information generated and processed annually in all sectors of commerce and industry’ as the 10th recital states, the legal protection provided by the directive is intended to encourage the development of systems performing a function of ‘storage’ and ‘processing’ of information, according to the 10th and 12th recitals.
29. Thus, classification as a database is dependent, first of all, on the existence of a collection of ‘independent’ materials, that is to say, materials which are separable from one another without their informative, literary, artistic, musical or other value being affected. On that basis, a recording of an audiovisual, cinematographic, literary or musical work as such does not fall within the scope of the directive, according to the 17th recital of the preamble to the directive.
30. Classification of a collection as a database then requires that the independent materials making up that collection be systematically or methodically arranged and individually accessible in one way or another. While it is not necessary for the systematic or methodical arrangement to be physically apparent, according to the 21st recital, that condition implies that the collection should be contained in a fixed base, of some sort, and include technical means such as electronic, electromagnetic or electro-optical processes, in the terms of the 13th recital of the preamble to the directive, or other means, such as an index, a table of contents, or a particular plan or method of classification, to allow the retrieval of any independent material contained within it.
31. That second condition makes it possible to distinguish a database within the meaning of the directive, characterised by a means of retrieving each of its constituent materials, from a collection of materials providing information without any means of processing the individual materials which make it up.
32. It follows from the above analysis that the term database as defined in Article 1(2) of the directive refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.
33. In the case in the main proceedings, the date and the time of and the identity of the two teams playing in both home and away matches are covered by the concept of independent materials within the meaning of Article 1(2) of the directive in that they have autonomous informative value.
34. Although it is true that the interest of a football league lies in the overall result of the various matches in that league, the fact remains that the data concerning the date, the time and the identity of the teams in a particular match have an independent value in that they provide interested third parties with relevant information.
35. The compilation of dates, times and names of teams relating to the various fixtures in a football league is, accordingly, a collection of independent materials. The arrangement, in the form of a fixture list, of the dates, times and names of teams in those various football matches meets the conditions as to systematic or methodical arrangement and individual accessibility of the constituent materials of that collection. The fact, raised by the Greek and Austrian Governments, that lots are drawn to decide the pairing of the teams is not such as to call into question the above analysis.
36. It follows that a fixture list for a football league such as that at issue in the case in the main proceedings constitutes a database within the meaning of Article 1(2) of the directive.
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39. Under the 9th, 10th and 12th recitals of the preamble to the directive, its purpose, as OPAP and the Greek Government point out, is to promote and protect investment in data ‘storage’ and ‘processing’ systems which 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. It follows that the expression ‘investment in … the obtaining, verification or presentation of the contents’ of a database must be understood, generally, to refer to investment in the creation of that database as such.