ECJ, 1 March 2012, case C-604/10 (Football Dataco et al. versus Yahoo UK Ltd et al.)
Football Dataco organizes annual football leagues in England and Scotland. For purposes of these football leagues, Football Dataco draws up and publishes fixture lists. Yahoo was using these lists to offer their own football news and to organize bets on the matches.
Football Dataco claimed compensation for the use of their lists. They thought that pursuant to the Databases Directive, they were eligible for both copyright protection and protection under a 'sui generis' database right.
Protection of Databases
The Databases Directive provides that a database may enjoy two kinds of protection. The first kind is copyright protection: "In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright". The copyright relates only to the structure of the databases. The works included in a database may also enjoy copyright protection. Besides, a database may be protected by a 'sui generis' right. That is the database right: a right for the maker of a database "which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents".
Preliminary Questions
The national courts held that no sui generis right to the fixture lists had arisen. This opinion is in line with previous rulings of the ECJ (such as Fixtures and British Horseracing), in which the ECJ held this kind of fixture lists in principle unprotectable by the database right, because the investments mainly concern the creation of the elements from which the collection is compiled, and not the obtaining, verification or presentation of the contents.
The next question was whether the database was copyright-protected. The ECJ was presented with two preliminary questions on this topic, in short:
- Under which conditions is a database eligible for protection by copyright?
- Is it possible for national law to grant copyright protection to databases under conditions which are different to those set out in the Directive?
The ECJ considered on the first question that the intellectual effort and skill of creating the data are not relevant in order to assess the eligibility of a database for protection by copyright. Moreover, the selection or arrangement of that data does not need to add important significance to the data. In order to be eligible for protection by copyright, a database must, by reason of the selection or arrangement of its contents, constitute the author's own intellectual creation. This criterion of originality is satisfied when the author has been able to make free and creative choices and has thus stamped his 'personal touch'.
The second question – whether it is also possible to grant copyright protection to a database under different conditions – received a very brief answer from the ECJ. The ECJ stated that the explicit purpose of the Directive is to harmonize the copyright-protection of databases. Only the criteria that are set out in the Databases Directive may be used to determine whether or not a database is copyright-protected.
Consequences
The answer to the latter question seems to sweep away the foundation of Dutch protection of documents for databases. When the Databases Directive was introduced, doubts were already expressed about the status of protection of writings for databases. The legislator decided nevertheless to maintain the protection of writings besides the Databases Directive. Furthermore, the Dutch Supreme Court emphasized in the NVM/Telegraaf case that the protection of writings continued to exist besides the European-law protection of databases.
In the Dutch Copyright Act, the protection of writings has a special position. It protects non-original writings that are intended to be disclosed. However, the scope of protection is much smaller than that of 'full' copyright. The protection of writings is a kind of pseudo-copyright, which protects only against demonstrable, direct derivation. The ECJ judgment has clarified that only the criteria in the Databases Directive may be used to grant copyright protection to databases. Moreover, this rule applies also to stripped-down versions of copyright, such as the protection of writings. Producers of databases will therefore probably no longer be able to rely on the protection of writings, if database law and 'full' copyright law are of no avail. In the past, the protection of writings was often used as a safety net.
The Advocate General foresees that this judgment will also have great impact in common law countries. In common law countries a different level of 'originality' is generally required for copyright protection to be granted. The common law countries use the frame of reference of 'labor, skill and effort' for copyright protection, which made it easy for databases to be copyright-protected. This contrasts with the requirements applying in continental countries, where for a work to be protected by copyright it must generally possess a creative element, or in some way express its creator's personality, From now on, the common law countries will also have to follow this continental tradition for their copyright protection of databases, and will have to use the criteria of the Databases Directive. This means that in the common law countries too, databases will less easily be copyright-protected.
First published in the Kennedy Van der Laan newsletter - March 2012
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