As Guardian editor CP Scott wrote more than 100 years ago, ‘Comment is free, but facts are sacred.’ This motto has lurked behind a recent IP case, referred to Europe from the High Court of England and Wales. That referral has set out to answer three questions on the reuse of online information:

• Is it legal to copy plain facts from one website and publish them on another website if the material concerned is taken from a database?

• What precise copyright or other legal protection are the compilers of databases entitled to in that context?

• What kind of legal exposure are domain managers vulnerable to from any potential re-use of such material?

Europe’s forthcoming ruling on those matters will sound the final whistle in what has been a hotly contested match over data that has a long track record in generating excitement: football fixtures.

A Directive of two halves

In 2010, Football Dataco, the company responsible for creating football fixture lists used by the Premier League and Football League, launched a UK lawsuit against a number of organisations for republishing its fixture information without licence or payment. The defendants included bookmakers Britten Pools and Stan James, plus search engine Yahoo! and sports website Enetpulse, which provides its users with a live feed of scoring data.

Backed by powerful fellow claimants including the Football League Ltd, the Football Association Premier League Ltd and the Scottish Premier League, Football Dataco claimed that it owned intellectual rights in the fixtures lists and, as such, could charge for the reuse of that information. The claimants argued that their fixtures data had two types of legal protection: copyright and ‘sui generis’ (a unique legal right), both provided by the 1996 European Commission Database Directive.

Later in 2010, the High Court of England and Wales referred the case to Europe’s Court of Justice (CJ) for guidance.

To secure copyright protection for their fixtures databases, Dataco et al needed to demonstrate evidence of an author’s ‘intellectual creation’ in the way that the data was compiled. This could hinge upon the way in which it was categorised and formatted prior to public display online – activities that fall under the legal term ‘arrangement’. Meanwhile, the required criteria for sui generis protection is about how information is actually presented. According to the Directive, there should be ‘substantial investment’ involved with preparing the information contained in the database for display. This could include activities such as making any personal data comprised in the database anonymous in order to comply with data-protection rules.

Dataco contended that its football fixtures met the copyright test under the Database Directive because their authors took on tasks of arrangement: information was selected, gathered and ordered. Sui generis protection, meanwhile, was afforded by the formatting and design of the website. But Yahoo! et al countered that all Dataco had done was sift data and post it rather than arrange it. Consequently, they argued, the database was not covered by copyright protection under the European database directive. In their view, the material was fair game.

Kicked into touch?

The CJ has yet to deliver a final, formal ruling on the High Court referral. But in December, Advocate General (AG) Paulo Megozzi gave a non-binding, interim Opinion that serves as a useful indicator for the conclusion that the CJ is likely to come to. In Megozzi’s interpretation of the Directive, copyright and sui generis are separate legal protections for databases that have often been confused as hierarchical. For those who subscribe to the hierarchical reading, sui generis takes precedence as a specific database-protection clause, while copyright is a ‘fallback’ position in case sui generis has been ruled out.

In any case, though, he argued that the compilation of football fixture lists per se is a ‘data-creation activity’ that falls outside the scope of the Directive, not the ‘intellectual creation’ of an author. As such, the key points of his Opinion were:

• The effort expended in the creation of data cannot be taken into account when determining the eligibility of a fixtures database for protection under database copyright;

• Copyright protection is conditional upon the database having a ‘creative’ aspect – it is not sufficient that the creation of the database required labour and skill;

• It is for national courts to assess, on a case-by-case basis, what constitutes an ‘intellectual creation’.

The Opinion, which was highly favourable towards Yahoo! et al, takes those domains one step closer to being able to republish fixture lists released by UK football leagues, in the sure knowledge that they do not need to license the material. For that reason, law firm Herbert Smith described the Opinion as a ‘disappointment’ for many database owners: gaming companies, publishers and multimedia entities that collect and organise data for a whole host of purposes may find that their databases are not protected under copyright if the CJ decides to follow Megozzi’s lead, the firm argued.

Football fixtures are not the only area of sport in which companies have tussled over the protection of facts. In the late 1990s, The British Horseracing Board wanted to persuade the UK government to abolish the betting levy on races. By way of a replacement, the Board aimed to charge bookmakers for licences that would allow them to use its runners-and-riders information. The plan was scuppered by a 2004 CJ decision (British Horseracing Board Ltd et al v William Hill Organisation), ruling that the Board did not own enforceable database rights in that material.