Copyright yes, database right no

The other day, I did my standard half-day course on copyright for CLT. Less than half as much time as I need to cover copyright, I'd say, but OK for a sprint along the main straight. Far better to have time for a relaxed Marathon, appreciating the scenery, the birdsong, and the byways of the subject. But modern life doesn't allow time for that.

I talked about the difficulty - even the  near-impossibility - of finding anything in a database that could be protected by copyright, in the post-Directive world - the problems of 'author's own intellectual creation'. I outlined the sui generis database right, and told the delegates that the BHB case smashed a big hole in that with its requirement that the 'substantial investment' referred to in the Directive had to be directed to the right sort of activity, creating a commercial database rather than governing a sport.

Then I read Football Dataco Ltd & Ors v Brittens Pools Ltd (In Action 3222) & Ors [2010] EWHC 841 (Ch) (23 April 2010) and felt the need to eat my own words. Do I have an excuse based on the fact that my talk was only six days after the judgment was given? I don't believe it helps. In this new case, Mr Justice Floyd held that there was copyright in the fixture lists, the preparation of which had involved 'very significant labour and skill in satisfying the multitude of often competing requirements of those involved.' The process was not 'entirely deterministic' and not everyone would come up with the same answer:

Some solutions will better accommodate the requirements of the clubs and rules than others. The more sophisticated the compilation process, the more permutations it will be able to consider and the more requirements it will be able to satisfy. Judgments have to be taken as to the relative importance of certain rules in comparison to others. On occasions rules will have to be broken.

This work is not mere “sweat of the brow”, by which I mean the application of rigid criteria to the processing of data. It is quite unlike the compiling of a telephone directory, in that at each stage there is scope for the application of judgment and skill. Unlike a “sweat of the brow” compilation, there are some solutions which will simply not work, and others which will be better.

There is clearly more to making up a fixture list than I had ever thought - enough, it seems, to make it an original literary work. Just as well, from the point of view of the compilers, because there's no database right in it - the FML cases in the Court of Justice make that clear enough, and given the subject matter of the present case there was little hope of distinguishing the cases. Fixture lists (like the BHB's information) are created by first creating or collecting the data: the creation of the database does not involve anything like a substantial investment. An interesting judgment, which is going to reward further reading.