Fixtures Marketing Ltd v Oy Veikkaus Ab.
Date: 2004-11-09
21. 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).
22. 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).
23. In the present case, it appears from the observations submitted by the parties to the main proceedings and by the governments of the Member States pursuant to Article 23 of the Statute of the Court of Justice, that the information given in the order for reference enabled them to understand that the dispute arose over the use by Veikkaus, for the purpose of organising sporting bets, of information from the fixture lists prepared by the professional football leagues and that, against that background, the referring court has raised questions about the scope and extent of the sui generis  right provided for by Article 7 of the directive.
25. It must be observed that the lack of detail in the order for reference about the relationship between the English football leagues and Fixtures did not, as the observations submitted in this case confirm, prevent the governments of the Member States and the Commission from understanding properly the subject matter and significance of the questions referred to the Court or from expressing a useful opinion on them. Nor does it affect the ability of the Court of Justice to give a useful answer to those questions to the national court.
26. As regards the failure to take a view, in the order for reference, as to whether the actions by Veikkaus amounted to extraction and re-utilisation, the second question of the referring court must, given the context in which it appears, be understood as seeking clarification of the scope of those two terms which serve to define the scope of the prohibitions laid down by Article 7(1) and (5) of the directive.
31. Thus, in order to give a useful answer to the referring court, it is appropriate to deliver a more general ruling on the scope of Article 7(1) of the directive, which defines the extent of the protection conferred by the sui generis  right.
32. Article 7(1) of the directive reserves the protection of the sui generis  right to databases which meet a specific criterion, namely to those which show that there has been qualitatively and/or quantitatively a substantial investment in the obtaining, verification or presentation of their contents.
33. Under the 9th, 10th and 12th recitals of the preamble to the directive, its purpose 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.
34. Against that background, the expression ‘investment in … the obtaining … of the contents’ of a database must, as Veikkaus and the German and Netherlands Governments point out, be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis  right provided for by the directive is to promote the establishment of  storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.
35. That interpretation is backed up by the 39th recital of the preamble to the directive, according to which the aim of the sui generis  right is to safeguard the results of the financial and professional investment made in ‘obtaining and collection of the contents’ of a database. As the Advocate General points out in points 61 to 66 of her Opinion, despite slight variations in wording, all the language versions of the 39th recital support an interpretation which excludes the creation of the materials contained in a database from the definition of obtaining.
36. The 19th recital of the preamble to the directive, according to which the compilation of several recordings of musical performances on a CD does not represent a substantial enough investment to be eligible under the sui generis  right, provides an additional argument in support of that interpretation. Indeed, it appears from that recital that the resources used for the creation as such of works or materials included in the database, in this case on a CD, cannot be deemed equivalent to investment in the obtaining of the contents of that database and cannot, therefore, be taken into account in assessing whether the investment in the creation of the database was substantial.
37. The expression ‘investment in … the … verification … of the contents’ of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The expression ‘investment in … the … presentation of the contents’ of the database concerns, for its part, the resources used for the purpose of giving the database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility.
38. Investment in the creation of a database may consist in the deployment of human, financial or technical resources but it must be substantial in quantitative or qualitative terms. The quantitative assessment refers to quantifiable resources and the qualitative assessment to efforts which cannot be quantified, such as intellectual effort or energy, according to the 7th, 39th and 40th recitals of the preamble to the directive.
39. In that light, the fact that the creation of a database is linked to the exercise of a principal activity in which the person creating the database is also the creator of the materials contained in the database does not, as such, preclude that person from claiming the protection of the sui generis  right, provided that he establishes that the obtaining of those materials, their verification or their presentation, in the sense described in paragraphs 34 to 37 of this judgment, required substantial investment in quantitative or qualitative terms, which was independent of the resources used to create those materials.
41. In the case in the main proceedings, it must be observed that the human and technical resources described by the referring court and referred to in paragraph 11 of this judgment, are deployed for the purpose of determining, in the course of arranging football league fixtures, the dates and times of and home and away teams playing in the various matches in accordance with a set of parameters such as those set out in paragraph 10 of this judgment.
43. Accordingly, it must be ascertained, leaving aside the investment referred to in the previous paragraph, whether the obtaining, verification or presentation of the contents of a list of football fixtures attests to substantial investment in qualitative or quantitative terms.
44. Finding and collecting the data which make up a football fixture list do not require any particular effort on the part of the professional leagues. Those activities are indivisibly linked to the creation of those data, in which the leagues participate directly as those responsible for the organisation of football league fixtures. Obtaining the contents of a football fixture list thus does not require any investment independent of that required for the creation of the data contained in that list.
45. The professional football leagues do not need to put any particular effort into monitoring the accuracy of the data on league matches when the list is made up because those leagues are directly involved in the creation of those data. The verification of the accuracy of the contents of fixture lists during the season simply involves, according to the observations made by Fixtures, adapting certain data in those lists to take account of any postponement of a match or fixture date decided on by or in collaboration with the leagues. As Veikkaus submits, such verification cannot be regarded as requiring substantial investment.
46. The presentation of a football fixture list, too, is closely linked to the creation as such of the data which make up the list, as is confirmed by the absence of any mention in the order for reference of work or resources specifically invested in such presentation. It cannot therefore be considered to require investment independent of the investment in the creation of its constituent data.
47. It follows that neither the obtaining, nor the verification nor yet the presentation of the contents of a football fixture list attests to substantial investment which could justify protection by the sui generis  right provided for by Article 7 of the directive.
48. The activities described in paragraph 13 of this judgment are unconnected with the drawing up of fixture lists. As Veikkaus points out, the resources used for those activities cannot, therefore, be taken into account in assessing whether there was substantial investment in the obtaining, verification or presentation of those fixture lists.
49. In the light of the foregoing, the answer to the first question referred should be that the expression ‘investment in … the obtaining … of the contents’ of a database as defined in Article 7(1) of the directive must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organising football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.
50. In the light of the foregoing, there is no need to reply to the other questions referred.