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Legal protection of sporting data:  The Football Dataco case

Legal protection of sporting data: The Football Dataco case

On a trial of preliminary issue into the protection of the annual fixture lists produced for the English and Scottish Football Premier League, the High Court of Justice ruled that fixture lists fall under the umbrella of the database copyright set forth by art. 3 of the EU Database Directive in 1996 (the “Directive”), but not of the sui generis database right under art. 7 of the Directive or any other copyright .
The ruling was obviously welcomed by sporting bodies and event organizers, who have been trying for quite some time to underpin their claim over a share of the business generated by the sports betting industry. Recognition of original and exclusive rights on fixtures is necessary in order to request payment of a licensing fee from betting agencies. Absent ad-hoc legislation as in the case of France and a few other jurisdictions, the Directive, according to the High Court of Justice, may provide nonetheless legal protection to sport events organizers.
Under the Database Directive two alternative intellectual property rights are envisaged in connection with databases: i) the “sui generis” database right (art. 7), which requires the database creator to make a (qualitatively or quantitatively) substantial investment in either obtaining, verifying or presenting the data; and ii) the “database copyright” (art. 3), which implies a work of selection or arrangement of the data, that involves an element of creative endeavour and constitutes the author’s intellectual work. A 2004 ruling issued by the Court of Justice of the European Union foiled the expectation of sports bodies to achieve sui generis database protection for their fixtures lists. There, the Court made it clear that no database right existed in the fixture lists due to the absence of the specific legal requirements, i.e. substantial investment in obtaining, verifying and presenting them. It went on saying, notably, that investment in the creative process would not be relevant in respect of sui generis database protection,.
However, the assessment of the European Court was limited to the database right, whereas the High Court analysis included art. 3 of the Directive. Following a thorough examination of the Premier League fixture lists creation process, the High Court found that the FA Premier League championship fixtures constituted the author’s own intellectual creation thereby qualifying for database copyright protection.
Upon appeal, the matter was referred by the Court of Appeal to the Court of Justice of the European Union to shed light on the demarcation of the two legal protections granted to databases and on the “intellectual creation” requirement . Should the ECJ confirm the conclusions of the High Court, it would pave the way for sports championships and tournaments organizers to seek legal protection against unauthorized use of the fixture lists and consequently ask a licence fee for their commercial exploitation.
In the aftermath of the High Court decision, the German Football League (DFL) decided to put in place, as of January 2012, a licensing system for the commercial exploitation of its fixture lists, especially in the sport betting field. This bold decision was not hindered by the lack, in Germany, of statutory rules affirming such exclusive right. Rather, it leverages on the precedent set by the UK court, assuming football fixtures protection under sect. 4(2) of the German Copyright Act, which implemented art. 3 of the Directive. If the new regulation will be challenged by sports betting agencies, it will then be on the German courts to assess whether the “intellectual creation” threshold is actually satisfied. However, such judicial test in Germany will probably need to wait until the ECJ has released its decision on the Dataco case.

Stella Riberti
Luca Ferrari

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