Database dissection

The Court of Appeal has referred some questions to the CJEU concerning database copyright in their judgment last Thursday about football fixture lists, Football Dataco Ltd & Ors v Yahoo! UK Ltd & Ors [2010] EWCA Civ 1380. The judgment being appealed is [2010] EWHC 841 (Ch).

Here are the questions:

1. In Article 3(1) of Directive 96/9/EC on the legal protection of databases what is meant by “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” and in particular:
(a) should the intellectual effort and skill of creating data be excluded?
(b) does “selection or arrangement” include adding important significance to a pre-existing item of data (as in fixing the date of a football match);
(c) does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?
2. Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

Dissecting databases: Questions 1(a) and (b)

Article 1 of the Database Directive defines a database as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. A previous case about football fixture lists, (C-444/02), said ‘independent’ meant having autonomous informative value. ‘Independent data’ in the football lists would then be complete fixtures (e.g. ‘Arsenal v Chelsea on 26 April at Stamford Bridge’).

Article 3 provides that databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright.

The Court of Appeal appear to conflate ‘data’ in Article 1 with ‘contents’ in Article 3. If that is correct, then the football list makers never select or arrange at all. They do not start by coming up with the fixtures and then list them chronologically. The first thing they do is generate a list of dates and then arrange the teams and venues within them.

But it is a mistake to confuse what goes into a database with what comes out of it. Routinely, those who create databases enter fragments of information that do not have autonomous value in a piecemeal manner while users take out something else, coherent chunks, often tailor-made according to what variables they have entered.

The million-dollar question: Question 1(c)

The Court of Appeal’s question 1(c) has huge implications beyond this case. Infopaq (Case C‑5/08) established that copyright only protects the ‘author’s own intellectual creation’. If this needs to involve more than labour and skill, many mundane documents will no longer be protected by copyright in the UK.