Everyone thought the question of what rights exist in football fixture lists was settled back in 2004 when the European Court of Justice concluded that the then-new database right did not protect football fixture lists. But a judge has just ruled that they are protected. What now?
As many in the gambling industry will know, this decision did not stop Football Dataco Limited (and others) from sending out demands for payment for use of football fixture lists.
In response to these demands, companies took one of two views. Either they would pay on the basis that the sum demanded was relatively modest, or they would refer Football Dataco to the European case brought by Fixtures Marketing Limited, the predecessor to Football Dataco, and say that they had no legal right to pursue any licence fees.
Plainly, Football Dataco was tired of receiving the second type of response and went to the English High Court to seek clarification as to which legal rights may protect football fixtures.
In a judgment given by Mr Justice Floyd in April, much to the surprise of the gambling industry, the Judge found that football fixture lists were indeed protected by legal rights – but still this is not the end of the matter. An appeal on the ruling is due to be heard in November.
The background as to how Football Dataco, PA Sports and a variety of English and Scottish leagues came to sue Brittens Pools, Yahoo!, Stan James and Enetpulse is complicated. However, the question put to Mr Justice Floyd was a simple one: "Do legal rights protect football fixtures?" Specifically, were football fixtures protected by copyright and/or database right?
Creation of the fixtures lists
The evidence before the English Court was that when compiling football fixtures, the leagues undertook a process which was part automated and part the work of people.
This process was governed by various rules which meant, for example, that teams should not play more than a certain number of consecutive home or away matches and should not play at home when their nearest same city rival was also at home.
These rules meant that the creation of a fixture list is certainly more than a question of merely putting all the teams' names into a computer. Add to that the demands of television and it was definitely arguable that a fixture list may be an original literary work and that the investment in obtaining, verifying or presenting the fixture list was sufficient to give rise to the database right protection.
Since the European Court of Justice has already determined that fixture lists are not protected by the database right, it is hard to see how the Judge could have decided anything other than what he did, namely that no database right existed.
The European Court said that drawing up a fixture list primarily involved the creation of data, and the extra effort (if any) in obtaining, verifying or presenting the data was trivial and not sufficient to attract the database right.
Even though Football Dataco went to great lengths to explain the complexity of compiling a fixture list, the Judge was content that the claimants had not satisfied the "investment test," maintaining that all the effort went into creating the data.