Many publishers produce what they regard as “compilations” of one kind or another, but as publishing generally becomes more digitised it is likely that these “compilations” will be regarded as “databases” for the purposes of copyright law. The difference is more than merely academic; in some cases it will determine whether or not the compilation can be protected at all against copying by others.
A recent example
The recent High Court case of Football DataCo v Brittens Pools dealt with the question of whether there was any copyright protection for English and Scottish football league fixture lists, and the decision represents a landmark in recent judicial thinking on copyright and database right. The case neatly illustrates the distinction between compilations and databases and the legal ramifications that flow from it.
Both the English and Scottish football leagues put a lot of effort into compiling their fixture lists for each forthcoming season. Not surprisingly, when two bookmakers and Yahoo! took the lists without permission the leagues were not best pleased. However, could they do anything about it? The last time a UK sporting organisation (the British Horseracing Board) tried to stop a bookmaker from using its lists of runners and riders without permission it failed badly in front of the European Court of Justice (ECJ).
The type of effort used by the football leagues in compiling the fixture lists (and how it differed from the effort used by the British Horseracing Board in its case) proved to be important. In brief, each year employees of the football leagues prepared draft fixture lists initially containing only the dates on which each of the matches could take place. Next the leagues sent out Fixtures Questionnaires to the clubs, in response to which clubs could make specific date and other requests. These details were then submitted to a computer services company which carried out a process referred to as “sequencing and pairing”, described as a mixture of art and science, designed to strike a fair and reasonable balance between the competing date and other requests of each club. The computer services company then worked directly with the employees of the leagues to manually review the lists (with computer software being used to assist in finding a solution to problematic fixtures), and this was then followed by two further meetings to consider the fixtures, one including representatives from the police.
The law
Under UK copyright law as it stood until 1997 football fixture lists were protected by copyright as a literary work (specifically a “compilation”) as long as it could be shown that some labour, skill, judgement or ingenuity had been brought to bear upon the compilation. The change in the law in 1997 came as a result of the implementation of the European Database Directive, one of the effects of which was to change the definition of “literary work” in section 3 of the U.K.’s Copyright, Designs and Patents Act 1988 to the following:
“any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—
(a) a table or compilation other than a database, and
(b) a computer program;
(c) preparatory design material for a computer program; and
(d) a database.”
The new element, as can be seen from the emphasis above, was the specific inclusion of the concept of a “database”. Section 3A was added to the 1988 Act to define a “database” as:
“a collection of independent works, data or other materials which —
(a) are arranged in a systematic or methodical way, and
(b) are individually accessible by electronic or other means.”
However, copyright would only protect a database “if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.” Until the Football Dataco case it was not entirely clear what an English court would regard as “the author’s own intellectual creation”; all that was clear was that the bar had been raised and it would now be more difficult to prove copyright protection for anything which fell into the definition of a database.
At first this “raising of the bar” did not appear to be too dramatic since the Database Directive simultaneously created a new “database right” (the unfortunately named “sui generis right”) for the maker of a database who can show that there has been a substantial investment in either the obtaining, verification or presentation of the contents. Many assumed that most of those databases which might now fall outside copyright protection because of a lack of “the author’s own intellectual creation” would nonetheless be protected by the new right. However, the sui generis right was soon shown not to be as powerful a right as first thought. The ECJ held in the British Horseracing Board and other cases that the right would only apply when a database owner had used resources to seek out independent materials and collect them in the database; it did not apply where the database owner had created the underlying materials itself and then subsequently collected them together in a database.
How the law applied to the football fixture lists
The case for the football leagues under the sui generis right was not strong, and the judge found it easy to conclude that merely finding and collecting the data which made up a football fixture list were indivisibly linked to the creation of those data, in which the leagues participated directly as those responsible for the organisation of football league fixtures. Obtaining the contents of a football fixture list thus did not require any investment independent of that required for the creation of the data contained in that list. The sui generis right would not offer any protection.
Would the fixtures lists be protected by copyright? It was clear that the fixtures lists fell within the definition of a database within section 3A. As a result, and in view of the wording of section 3 of the 1988 Act mentioned above, the lists could not be protected by copyright as “tables or compilations”, and could only be protected by copyright as databases if they constituted “the author’s own intellectual creation”. Neither the ECJ nor any English court had so far held conclusively what was meant by this term under the Database Directive, but after some consideration the judge concluded that to meet this test the author must have exercised judgment, taste or discretion (good, bad or indifferent) in selecting or arranging the contents of the database. He indicated by way of example that a list of all Acts of Parliament in the last 100 years would not meet the test; the rote application of such a rule (that each Act simply had to have been passed within the last 100 years to be included) was not enough. On the other hand a collection of the author’s 1,000 favourite poems would plainly pass the test.
The judge held that the authors of the football fixtures lists had exercised choice over the dates on which the fixtures were played and the identity of the teams to play in each match on those dates. Although the overall list of matches in any league was ultimately a given, there was undoubted selection and arrangement in the choice of dates and the decisions as to which match was to be played on which date. Whether the author or authors could be identified by a reader of the database was irrelevant. Finally, the quantum of relevant work involved in producing the fixture lists for any of the leagues had been considerably greater and had been made more complex by the fact that no two fixtures could be freely interchanged without affecting others. As a result the judge concluded that the fixture lists were protected by copyright as databases.
The impact for digital publishers
Sporting fixture lists may not seem to have much in common with most other literary publications, but the distinction between them is narrowed in the digital world. Once put into a digitised form, most collections of information will probably look like “a collection of independent works, data or other materials which are arranged in a systematic or methodical way, and are individually accessible by electronic or other means”; in other words, a database. If that collection of information is to be protected from copying then it must either constitute the author’s own intellectual creation (in which case copyright will apply), or it must be the result of a substantial investment in either the obtaining, verification or presentation of its contents (in which case the sui generis right will apply, but only if the investment relates to obtaining, verifying or presenting contents sourced from third parties and not content created “in-house”).
The example, approved by the judge in the Dataco case, of someone’s 1,000 favourite poems is an easy one – clearly there has been intellectual creation here. But what of an anthology of “poems published by X between 1945 and 1955″? If the selection is based solely on when X published his poems then there is probably insufficient intellectual creation to merit copyright protection. If the collecting together, verification or presentation of X’s 1945/55 poems was the result of “substantial investment” then the sui generis right might apply, but the position is far from clear, and if the person compiling the list of poems is in fact X himself or the existing publisher of X then it would seem that no sui generis right will apply at all. Finally, any collection of information which is computer-generated could be in real danger. For copyright to apply the person by whom the arrangements necessary for the creation of the computer-generated work are undertaken must have exercised some “intellectual creation”, and in practice that may be difficult to show. As far as the sui generis right is concerned, many computer-generated works will be based on information that has already been collected by the organisation running the computer, and may not pass the “substantial investment” test as defined by the ECJ.
Publishers may put in considerable effort to create “compilations”, but once they are in the digital world the rules can change quite dramatically, and what were thought to be valuable rights may in fact not exist at all.
©Taveners
August 2010