Friday, 1 March 2013

Case C-604/10, Football Dataco Ltd v Yahoo! UK Ltd, Stan James (Abingdon) Ltd and others

Back in the mists of time - as long ago as an expedition to Luxembourg takes - I wrote about the early rounds of this litigation (The Trouble with Databases). The Court of Appeal decided, on the basis of the BHB case, that the fixture lists in suit were not protected by database right (or sui generis protection, as it would be known to the ancient Romans were they still with us), but asked the Sages of Kirchberg whether they might be protected by copyright. Well, I always thought that the directive had all but done away with copyright in databases, and replaced it with the Latin right, but one must always expect the unexpected. (Be aware that the sui generis right is also the subject of a reference to the Court of Justice in another Football Dataco case, C-173/11, also from the Court of Appeal.)

Of course, we cannot expect a straight answer from Luxembourg - not because the judges are unreliable in any way, but because they are there to interpret the law for us and it is definitely not for them to apply it to the facts. They say that a database will be protected by copyright if the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of the author, which of course is a matter for the national courts. The intellectual effort and skill used in creating the database are not relevant, and neither is whether the selection and arrangement includes 'the addition of important significance to the data' [sic] - what that means is anyone's guess. Finally, 'the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.'

I'd take that as a 'no'.

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