Ladbroke (Football) Ltd v William Hill (Football) Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Evershed,Lord Hodson,Lord Devlin,Lord Pearce |
| Judgment Date | 21 January 1964 |
| Judgment citation (vLex) | [1964] UKHL J0121-1 |
| Date | 21 January 1964 |
| Court | House of Lords |
[1964] UKHL J0121-1
Lord Reid
Lord Evershed
Lord Hodson
Lord Devlin
Lord Pearce
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Ladbroke (Football) Limited against William Hill (Football) Limited, that the Committee had heard Counsel, as well on Monday the 18th, as on Wednesday the 20th, Thursday the 21st, Monday the 25th, Tuesday the 26th, Wednesday the 27th and Thursday the 28th, days of November last, upon the Petition and Appeal of Ladbroke (Football) Limited, of 6 Old Burlington Street, London, W.l, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 19th of December 1962, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of William Hill (Football) Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 19th day of December 1962, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Respondents are well known bookmakers. Each week during the football season they have for many years sent out to their clients—referred to as punters—a fixed odds football betting coupon. The Appellants are also old established bookmakers. They decided to enter this field of betting in 1959 and began to send out coupons which closely resembled the Respondents' coupons. The Respondents claim copyright in their coupons and allege infringement by the Appellants. The Appellants maintain that only certain parts of the Respondents' coupons are copyright and they deny infringement. The decision of Lloyd Jacob J. in favour of the Appellants was reversed by the Court of Appeal (Lord Denning, M.R., and Donovan, L.J., Diplock, L.J., dissenting) and an injunction was granted. The Appellants now seek to have the order of Lloyd Jacob J. restored.
A coupon is a sheet of paper on which are printed various lists of forth-coming matches between well-known teams. One called "Nothing Barred" is a full list of some 50 matches. The others are shorter lists of matches selected by the bookmaker from the full list. The bets offered in respect of these lists vary in character. From some the punter must pick a certain number of winners. From others he must pick so many home or away wins or draws or combination of these. And there are other kinds of bets offered. The variety of bets offered is very great. The Respondents' coupon contained 16 lists each with an appropriate name, and we were told that no less than 148 different varieties of bet were offered if one adds up all those offered under each list. Naturally the odds offered differ widely—from as low as 5-2 to as high as 20,000-1. And the Respondents have one list of peculiar difficulty where they offer £100,000 for two pence.
It is not disputed that a vast amount of skill, judgment, experience and work has gone into building up the Respondents' coupon. There is keen competition in this field. If the bookmaker selects matches too easy to forecast, or offers too favourable odds, he may lose very large sums. If his selections of types of bet, matches and odds do not appeal to punters they will go to rival firms. It appears that the Respondents have not altered the general form of their coupon since 1951. They only occasionally alter the odds offered for each type of bet. What is new each week is the selection of the matches which are to go into the lists.
When the Appellants decided to enter this field they had to devise a suitable form of coupon. Their manager who was given this task was formerly employed by the Respondents, but it appears that he tried to devise a form of coupon substantially different from the Respondents' coupon. The coupons of some 20 other firms in the business were produced at the trial, and, while they have a general similarity, they vary very much in the nature of their lists and the variety of bets offered in respect of many of the lists. Most of them were studied by the Appellants' manager, but his proposals were rejected by the Appellants' managing director, who adopted a form closely similar to the Respondents' coupon. The Respondents had 16 lists: the Appellants' coupon contains 15 of these lists, all of which appear in the same order as in the Respondents' coupon. Moreover, the varieties of bets offered by the Appellants in each of these 15 lists are almost identical with the offers by the Respondents in their corresponding list. It is true that, with I think one exception, each of these lists is to be found in one or more of the other bookmakers' coupons and some are to be found in almost all of them. But the Appellants do not suggest that the close resemblance between their coupon and the Respondents' coupon is fortuitous. They admit that a good deal was simply copied from the Respondents, and they say that they were entitled to do that. By no means everything was copied. For some of the lists, they devised new names or headings, and the learned trial judge has found that they worked out for themselves the hundred or more different odds offered in respect of the various kinds of bets. And it was impossible to copy the selections of matches: the selections must be from the matches to take place in the following week, so there would not be time for one bookmaker to copy from the coupon of another matter which alters every week.
The first question to be determined is whether or to what extent copyright attaches to these coupons. The Respondents say that a coupon must be regarded as a single work and that as such it is protected by copyright. The Appellants seek to dissect the coupon. They would not only dissect it into the 16 lists, but they would further dissect each list into heading, selection of matches, and statement of odds offered for the various kinds of bets. They admit that there is copyright in the selection and in the statements of odds offered: they can safely do that because there they did not copy. But they deny any copyright as regards the rest of the coupon.
The Copyright Act, 1956 provides, by section 2, that copyright shall subsist in every original literary work and, by section 48, that literary work includes any written table or compilation. I have no doubt that the coupon must be treated as a single compilation. The Appellants' dissection theory is derived from some statements in infringement cases and I must, therefore, examine at this point the law regarding infringement. Copyright gives the exclusive right to do certain things including "reproducing the work in any material form", (section 2(5)), and reproduction includes reproduction of a substantial part of the work (section 49(1)). Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. And if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken. One test may be whether the part which he has taken is novel or striking, or is merely a commonplace arrangement of ordinary words or well known data. So it may sometimes be a convenient short cut to ask whether the part taken could by itself be the subject of copyright. But, in my view, that is only a short cut, and the more correct approach is first to determine whether the plaintiff's work as a whole is "original" and protected by copyright, and then to enquire whether the part taken by the defendant is substantial.
A wrong result can easily be reached if one begins by dissecting the plaintiff's work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself, and so on. To my mind, it does not follow that because the fragments taken separately would not be copyright therefore the whole cannot be. Indeed, it has often been recognised that if sufficient skill and judgment have been exercised in devising the arrangements of the whole work, that can be an important or even decisive element in deciding whether the work as a whole is protected by copyright.
The Appellants relied on cases where it has been held that in general the title of a work is not copyright. Those cases are dealt with by Lord Wright in the judgment of the Privy Council in Francis Day & Hunter, Limited v. Twentieth Century Fox Corporation, [1940], A.C., 112, and I think that he rightly expressed the principle when he said (at p. 122)—"The copying which is complained of is the use of the title, and that is too unsubstantial on the facts of this case to constitute an infringement". None of the decisions cited in argument appears to me to conflict with the view that you must first decide whether the plaintiff's work as a whole is entitled to copyright and then see whether the part taken is a substantial part. The only apparent exception would seem to be a case such as Leslie v. Young & Sons, [1894], A.C., 335, where a compilation was treated as...
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