Football Dataco Ltd v Britten Pools Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob,Lord Justice Hooper,Lord Justice Rimer |
| Judgment Date | 09 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1380 |
| Docket Number | Case No: A3/2010/1381/1382/1389/1432 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 2010 |
[2010] EWCA Civ 1380
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(INTELLECTUAL PROPERTY)
The Hon Mr Justice Floyd
Before: The Rt Hon Lord Justice Jacob
The Rt Hon Lord Justice Hooper
and
The Rt Hon Lord Justice Rimer
Case No: A3/2010/1381/1382/1389/1432
James Mellor QC and Lindsay Lane (instructed by DLA Piper UK LLP) for the Respondents/Claimants/Cross-Appellants
Richard Meade QC and Philip Roberts (instructed by Olswang) for the Defendants/Appellants/Cross-Respondents
Hearing date: 25 November 2010
Lord Justice Jacob:
The claimants allege that between them they own rights, of one type or another, in the football Fixture Lists of English and Scottish leagues. The defendants need to use those lists in the conduct of their businesses. They say they are entitled to do so without paying because the law does not create rights of any of the claimed types. They concede that if there were any such rights, the claimants would own them.
The three sorts of right claimed are:
(1) A database “Sui Generis Right” pursuant to Art. 7 of the Database Directive (96/9/EC) (“the Directive”);
(2) A copyright pursuant to Art. 3 of the Directive (an “Art. 3 right”);
(3) A copyright under English statutory copyright law which, it is said, can subsist even if neither of the first two types subsists.
The facts
The Judge made findings of fact as to how the various Fixture Lists are created. Although he had to consider each list separately and the details of preparation of the lists differed, in the end nothing turned on the differences. When directly challenged as to whether there could be different answers for different Fixture Lists, the best that Mr Meade QC for the defendants could say was the Scottish Lists involved more use of a computer and less individual input than the English Lists.
The detailed findings of the Judge are at [9–22] of his Judgment [2010] EWHC 841 (Ch) for the English Lists. We do not repeat them here. In summary, although the author (a Mr Thompson) has to work within certain rules (e.g. each team must play each other twice, once at home, once away, there shall not be three consecutive home or away matches, matches are mainly at weekends in the football season and so on) the process is far from purely mechanistic. The Judge's conclusions were as follows:
[41] I conclude that the process of preparing the Fixture Lists, whether in England or in Scotland remains one which involves very significant labour and skill in satisfying the multitude of often competing requirements of those involved. Mr Meade was obliged to accept in the light of the evidence that the process was not entirely deterministic.
[42] The process is therefore not one where 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.
[43] 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. Mr Thompson explained that it might be the case that the computer would say that there was no solution for a given set of constraints. The quality of the solution depends in part on the skill of those involved.
[44] Mr Meade suggested that although the exercise was not in fact completely computerised, the exercise was one which could be performed by a computer. Mr Thompson did not accept this. There were aspects where the computer is used as a tool (more extensively in the lists prepared by Mr Stone and Optimal [the Scottish lists]), but the use of the computer does not eliminate the use of judgment and discretion.
So the preparation of the Fixture Lists involves considerable judgment and skill of its creator. The Judge concluded that the quantum of creative work was substantial, much more than, for instance, anything involved in the compilation of several recordings on a CD, the example referred to in Recital 19 of the Directive.
The Legislation
The Directive has been implemented into English law by amendment of the Copyright, Designs and Patents Act 1988. The Judge sets out the details of the complicated, and to our minds, unhelpful, way it has been done. No-one suggests the amended Act means anything different from the Directive. So it is easier and safer to work directly from that. We can but express the hope, yet again (see e.g. CCE v Century Life, CA 19 th December 2000) that when a Directive is prescriptive as to the detail of its implementation, its implementation should simply consist of a short Statutory Instrument (or where necessary Act of Parliament) saying something like “the following provisions of Directive … are hereby made part of UK law and any prior provision of law is hereby repealed to the extent, and only to the extent, that it is inconsistent with the Directive”.
The Proceedings and contentions so far
The trial Judge held on the facts that the law does create an Art. 3 right, but not either of the other two claimed rights. The claimants say, if he was wrong about the Art. 3 right, then an Art. 7 right subsists, failing that an English copyright subsists.
We held a short hearing. On behalf of the claimants it was contended that the question of subsistence of the Art. 3 right was acte clair in their favour. We were unpersuaded of that and said so. Neither side wanted a detailed ruling on the point.
It followed, the question being of considerable importance within the EU and it being necessary for our decision, that the thing to do was to refer appropriate questions to the CJEU about Art. 3. Later we will explain why we are referring the Art. 3 question. Before we do so, there is some preliminary matter to consider.
A Sui Generis Right?
As to the claimed Sui Generis Right we, like the Judge, thought the point was acte clair. The Court has made it plain that no such right subsists in things like football fixture lists. It did so in Fixtures Marketing v Oy Veikkaus Case C-46/02 [2004] E.C.R. I-10365; Fixtures Marketing v...
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