Footy Fixture Lists Attract Copyright

Originally published April 30, 2010

Keywords: football fixture lists, copyright, Football Dataco, Brittens Pools, database copyright, English law

Mouth-watering footy fixtures may come as a matter of routine for sports fans, but their preparation involves very significant labour and skill, so the court found. The English High Court confirmed in a recent judgment (Football Dataco Limited & Others v. Brittens Pools Limited & Others [2010] EWHC 841 (Ch)) that the football fixture lists of the English and Scottish football leagues are entitled to "database copyright" under the English law.

Although the Hong Kong copyright regime for databases and works of compilations is quite different from its English counterpart, the English decision casts light on several key common concepts which could be of high persuasive value to Hong Kong courts.

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In England, a compilation of data may attract copyright (either as "database' or as "table or compilation other than a database") under the Copyright, Designs and Patents Act 1988 ("Act") and/or the sui generis database right under the European Database Directive. Hong Kong does not recognise the sui generis database right but gives copyright to a compilation of data, which by reason of the selection or arrangement of its contents constitutes an intellectual creation. The key criteria of "selection", "arrangement" and "intellectual creation" are borrowed from the Act.

In the Football Dataco case, the plaintiffs are the organisers of the English and Scottish football leagues and the creators of the fixture lists. The defendants utilise those fixture lists without a licence. The English High Court was asked to determine what if any rights subsist in those lists.

The judgment relates the many ground rules and considerations in setting the fixtures. For example, for the English leagues, no club shall play three consecutive home or away matches, and at all times during a season each club should ideally have played an equal number of home and away matches. Considerations must also be given to specific requests for geographical or security reasons.

In a nutshell, the court rejected that the fixture lists enjoyed the sui generis database right. The Database Directive requires a substantial investment in either the obtaining, verification or presentation of the contents. Although the preparation of the lists requires substantial efforts, those efforts go into the "creation" rather than the "obtaining...