List-makers battle to keep football fixture lists protection
Appeal will challenge copyright protection for the lists
How then did the Judge conclude that legal rights did exist in football fixture lists?
In order to answer this question, it should be noted that the Database Right Directive also amended national copyright laws and, to the extent a law did not already exist, it introduced copyright protection for databases produced as a result of the author's own intellectual creation.
When the Fixtures Marketing Limited case was pursued against non English companies, the question of the new UK national copyright law did not arise. Accordingly, the question of whether copyright could protect a fixtures list had not been considered since a series of old English cases decided before the Copyright, Designs And Patents Act 1988 had been amended to introduce the stand alone European database right.
Whether or not any piece of written work is protected by copyright depends on whether the work is original in the sense of being the author's own intellectual creation. Even though the creator of the English league fixture list, Glenn Thompson, admitted that his fixture list did not have his stamp of individuality on it, the Judge held that judgement and discretion in the relevant copyright sense was exercised and that this was quantitatively sufficient to conclude that fixture lists were protected by "database copyright".
So is the end of the matter? The answer is almost certainly no.
First, Mr Justice Floyd's decision is subject to an appeal which will be heard in November.
Second, regardless of the outcome of the appeal, there is almost certainly going to be a reference to the European Court of Justice to ensure the English decision on the database copyright is consistent with a European decision on database right.
Third, this case was only a preliminary issue. The Court did not hear any arguments as to whether or not the defendants had valid defences. For example, at least in the context of news reporting, it is difficult to see how a newspaper could report the current event of Saturday's fixtures without reproducing it as an element of a fixture list. While this defence may not be available to the gambling sector, these arguments need to be put before the Court so that there can be certainty in this area.
In conclusion, this case can probably best be described as round six of what is likely to be a full 12-round heavyweight bout.
By Iain Connor, a partner with Pinsent Masons, the law firm behind OUT-LAW.COM. Iain is a specialist in intellectual property disputes and is a member of the Pinsent Masons' core team for the gambling sector.
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