Advocate General Mengozzi delivered his Opinion in Football Dataco v Yahoo & ors on 15 December. In summary, his Opinion is that the football fixture lists compiled by Football Dataco should not be protected by copyright (the UK court having already held that they are not protected by database right). The Advocate General’s Opinion is based upon his conclusion that the relevant efforts expended by Football Dataco in creating the data in the lists are irrelevant for the purposes of assessing whether there is copyright protection in the database. Furthermore, the Advocate General proposes a stringent test for ‘author’s own intellectual creation’, which requires that the creation of the database (as opposed to that of the data) involves a ‘creative aspect’ and is not merely the result of labour, skill and effort.

The Court of Justice should now deliver its judgment within a few months – it does not have to follow the Advocate General’s Opinion but in the majority of cases it will do so.

Particular aspects to note from the Advocate General’s Opinion are as follows:

Preliminary comments

Copyright protection for databases focuses on the structure of the database – the way in which it has been put together through the selection of the data to be included or the way in which they are presented. In contrast, the sui generis database right prohibits extraction and/or re-utilisation of the data contained in the database. However, the different level of protection does not mean there are two separate concepts of a ‘database’.

The Database Directive protects the creation of databases (both in terms of structure of the database and in terms of collection of the data) but not protection of the data as such.

Even if copyright protection were available, the Advocate General noted that it was not clear that Yahoo’s activities, which were confined to the use of the raw data and not the structure of the database, would infringe in any event.

Copyright protection under the Database Directive

The effort expended by Football Dataco in the creation of the data cannot be taken into account when assessing whether there is copyright protection (or indeed, database right).

Attributing additional characteristics to an item which is already in a database may constitute an ‘arrangement of contents’ which could be relevant to copyright protection. However, the Advocate General states that this is not relevant on the facts of this case – the additional characteristics for each match are identified and collected at the data creation stage, i.e. before they are entered into the database. Accordingly, the Advocate General dismisses as irrelevant Football Dataco’s detailed submissions on the process of determining the details for each individual match – such activities are ‘wholly preliminary to, and separate from, that of the creation of the database’.

The question of ‘intellectual creation’ must be assessed on the basis of the circumstances of each case. However, the Advocate General’s view is that a database should have a ‘creative’ aspect. It is not sufficient that its creation involved labour, skill or effort. The CJEU has previously held that a copyright work will be an intellectual creation if it reflects the personality of its author, which is the case if the author is able to make free and creative choices in the production of the work.

In any event, again, the Advocate General stresses that the effort etc expended by Football Dataco does not relate to the creation of the database but to the previous stage, i.e. when the data are created.

However, the Advocate General notes that ‘mechanical’ efforts involved in collection of data are not irrelevant and the essential purpose of the sui generis right is to provide legal protection for those activities (despite the CJEU having previously found that such a right cannot be applied to football fixture lists, a point which the Advocate General says ‘does not detract from its importance in more general terms’.)

Further, the Advocate General suggests, a football fixture list can in some circumstances be protected by copyright. For example, there may be copyright protection if, in actually putting it together, the creator introduces sufficiently original features e.g. through the use of colours or other graphical elements. Such protection would only extend to the means of the representation and not the data represented. However, in this case, the lists do not appear to have any such feature (though this would be a matter for the UK court to determine).

Copyright protection under national law
Finally, the Advocate General suggests that national law may not confer copyright protection on databases which do not meet the necessary conditions under the Database Directive as the Directive has harmonised the protection of databases by copyright.

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