Databases may incorporate database rights or copyright. In order for database rights to subsist, there must have been substantial investment in the obtaining, verifying or presenting the contents of the database. In order for copyright to subsist, the database must constitute the author's intellectual creation, by reason of the selection and arrangement of the contents of the database. Database rights were created further to the Database Directive (Council Directive No. 96/9/EC), which also made provision for database copyright. Certain questions concerning these rights have been referred to the CJEU by the Court of Appeal in the case of Football Dataco Ltd & 5 Ors v (1) Yahoo! UK Ltd (2) Stan James (Abingdon) Ltd (3) Stan James Plc (4) Enetpulse APS [2010] EWCA Civ 1380.
The case concerned the use data compiled by Football Dataco from the Football League's fixtures. The defendants used those data for providing betting services, without having obtained a licence from Football Dataco. The court of first instance had found that no database rights subsisted in the databases, because there had been no substantial investment in the obtaining, verifying or presenting the contents; rather, the effort had gone into the creation of the contents. The court found, however, that database copyright subsisted, since the creation of the database had required significant creative input, labour and skill in determining how certain requirements must be met, which could be addressed in more than one way and not mechanistically.
The case went to the Court of Appeal, which was asked to consider referring questions to the CJEU concerning the subsistence in the fixture databases of: (i) database rights; (ii) database copyright under the Database Directive; and (iii) copyright under English statute.
The Court of Appeal declined to refer (i) to the CJEU as the issue had been recently decided by the CJEU, and the court at first instance has applied that decision.
The Court of Appeal did not consider that (ii) created any additional rights to (iii), but, to cover off any lingering doubt, asked the CJEU if the Database Directive precluded national rights in databases other than those described in the Directive.
As regards the nature of (ii), the parties' rival contentions were as follows. The claimants contended that the intellectually creative effort fell within the description of database copyright in the Database Directive, because the authors arranged data of all the matches to be played into the fixture list; alternatively, because the authors selected which matches were to be played on which days. But the defendants contended that this construction was; what the authors did was to create the data, while the Directive required the selection and arrangement of pre-existing data. The Court saw force in both contentions. It has asked the CJEU what is meant by "databases which, by reason of the selection and arrangement of their contents, constitute the author's own intellectual creation", in particular, whether this excludes the creation of data, whether "selection or arrangement" includes adding significance to pre-existing data (e.g. fixing the date of a football match), and whether more than significant labour and skill is required from the author and, if so, what.
The CJEU will need to resolve the possibility that, where the effort and skill is in the creation of the data, in the words of the Court of Appeal, the requirements applicable to the subsistence of database rights may be by-passed. The CJEU's determination will be of particular interest to gaming companies, publishers and other media and any business that "creates" data.
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