“Copyright for such a compilation can be claimed successfully if it be shown that some labour, skill, judgement or ingenuity has been brought to bear upon the compilation. The amount of labour, skill, judgement or ingenuity required to support successfully a claim for copyright is a question of fact and degree in every case.”
“Mr Shelley ... submits, and I agree with him, that it is clearly settled law that there can be no copyright in information or in an opinion per se. Copyright can only be claimed in the composition or language which is chosen to express the information or the opinion. ... ”
“In my judgement, on the facts of this case, it is not open to the defendants to try and dissect and break down the efforts of Sutcliffe in the way suggested. Accordingly in my judgment the plaintiffs are entitled to copyright in the chronological list.”
“32. Article 7(1) of the directive reserves the protection of the sui generis right to databases which meet a specific criterion, namely to those which show that there has been qualitatively and/or quantitatively a substantial investment in the obtaining, verification or presentation of their contents. 33. Under the 9th, 10th and 12th recitals of the preamble to the directive, its purpose is to promote and protect investment in data ‘storage’ and ‘processing’ systems which contribute to the development of an information market against a background of exponential growth in the amount of information generated and processed annually in all sectors of activity. It follows that the expression ‘investment in … the obtaining, verification or presentation of the contents’ of a database must be understood, generally, to refer to investment in the creation of that database as such. 34. Against that background, the expression ‘investment in … the obtaining … of the contents’ of a database must, as Veikkaus and the German and Netherlands Governments point out, be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database. 35. That interpretation is backed up by the 39th recital of the preamble to the directive, according to which the aim of the sui generis right is to safeguard the results of the financial and professional investment made in ‘obtaining and collection of the contents’ of a database. As the Advocate General points out in points 61 to 66 of her Opinion, despite slight variations in wording, all the language versions of the 39th recital support an interpretation which excludes the creation of the materials contained in a database from the definition of obtaining… 37. The expression ‘investment in … the … verification … of the contents’ of a database must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The expression ‘investment in … the … presentation of the contents’ of the database concerns, for its part, the resources used for the purpose of giving the database its function of processing information, that is to say those used for the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility… 44. Finding and collecting the data which make up a football fixture list do not require any particular effort on the part of the professional leagues. Those activities are indivisibly linked to the creation of those data, in which the leagues participate directly as those responsible for the organisation of football league fixtures. Obtaining the contents of a football fixture list thus does not require any investment independent of that required for the creation of the data contained in that list. 45. The professional football leagues do not need to put any particular effort into monitoring the accuracy of the data on league matches when the list is made up because those leagues are directly involved in the creation of those data. The verification of the accuracy of the contents of fixture lists during the season simply involves, according to the observations made by Fixtures, adapting certain data in those lists to take account of any postponement of a match or fixture date decided on by or in collaboration with the leagues. As Veikkaus submits, such verification cannot be regarded as requiring substantial investment. 46. The presentation of a football fixture list, too, is closely linked to the creation as such of the data which make up the list, as is confirmed by the absence of any mention in the order for reference of work or resources specifically invested in such presentation. It cannot therefore be considered to require investment independent of the investment in the creation of its constituent data. 47. It follows that neither the obtaining, nor the verification nor yet the presentation of the contents of a football fixture list attests to substantial investment which could justify protection by the sui generis right provided for by Article 7 of the directive. 49. In the light of the foregoing, the answer to the first question referred should be that the expression ‘investment in … the obtaining … of the contents’ of a database as defined in Article 7(1) of the directive must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organising football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.”
“The new requirement is not just a raising of the threshold. It imposes a requirement which is fundamentally different in kind. First it restricts consideration only to the arrangement or selection of the contents. So the skill and labour in gathering, (as opposed to any selection) or verifying is not relevant.”
“38. However, investment in the selection, for the purpose of organising horse racing, of the horses admitted to run in the race concerned relates to the creation of the data which make up the lists for those races which appear in the BHB database. It does not constitute investment in obtaining the contents of the database. It cannot, therefore, be taken into account in assessing whether the investment in the creation of the database was substantial. 39. Admittedly, the process of entering a horse on a list for a race requires a number of prior checks as to the identity of the person making the entry, the characteristics of the horse and the classification of the horse, its owner and the jockey. 40. However, such prior checks are made at the stage of creating the list for the race in question. They thus constitute investment in the creation of data and not in the verification of the contents of the database. 41. It follows that the resources used to draw up a list of horses in a race and to carry out checks in that connection do not represent investment in the obtaining and verification of the contents of the database in which that list appears.”
“28. I now turn to what I think is the flaw in [BHB’s counsel’s] reasoning. He starts from the beginning of the process, working down to the final, officially published, list of riders and runners. By a series of steps he says Art 7(1) databases are created by a process of gathering in and checking. 29. But the Court has, I think, implicitly rejected that approach. It focussed on the final database - that which is eventually published. What marks that out from anything that has gone before is the BHB's stamp of authority on it. Only the BHB can provide such an official list. Only from that list can you know the accepted declared entries. Only the BHB can provide such a list. No one else could go through a similar process to produce the official list. 30. So if one asks whether the BHB published database is one consisting of "existing independent materials" the answer is no. The database contains unique information - the official list of riders and runners. The nature of the information changes with the stamp of official approval. It becomes something different from a mere database of existing material. 31. It is only on this basis that one can understand the crucial paragraphs in the ECJ's reasoning [37 -41]. ... 34. It is true that in [38] the word “selection” is used. Out of context this might be taken to mean something like “creative choice” but in context it clearly does not have that meaning. Other language versions of the judgment (particularly the French determination) do not have the nuance of creative choice. 35. It follows that despite all [BHB’s counsel’s] ingenuity, the answer from the Court is clear. So far as BHB's database consists of the officially identified names of riders and runners, it is not within the sui generis right of Art.7(1) of the Directive. And I think the same reasoning applies in those cases (big races) where the BHB publishes a list of provisional runners prior to final declarations. Again what is published is different in character from a mere list of gathered in information. It is a list of horses that BHB have accepted as qualifying to race – as properly and actually entered”
“courts have to guard against the assumption that principles which have become familiar in the copyright field automatically apply to the new right.”
“Whereas, as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right.”
“More fundamentally the database must, when these two factors [selection and arrangement] are considered, constitute its author’s own intellectual creation. This imposes a significant qualitative factor on the test. It would appear to exclude computer-generated databases. It is submitted that there must be something which has had the author’s creativity stamped upon it. By this we mean that it must be something which could not be something which could fairly be said to be something which could have been created by many others. There must be some ‘subjective’ contribution. A ‘sweat of the brow’ collection will not do.”
“44. As regards newspaper articles, their author’s own intellectual creation … is evidenced clearly from the form, the manner in which the subject is presented and the linguistic expression. In the main proceedings, moreover, it is common ground that newspaper articles, as such, are literary works covered by Directive 2001/29. 45. Regarding the elements of such works covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation. 46. Words as such do not, therefore, constitute elements covered by the protection. 47. That being so, given the requirement of a broad interpretation of the scope of the protection conferred by Article 2 of Directive 2001/29, the possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for conveying to the reader the originality of a publication such as a newspaper article, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article. Such sentences or parts of sentences are, therefore, liable to come within the scope of the protection provided for in Article 2(a) of that directive. 48. In the light of those considerations, the reproduction of an extract of a protected work which, like those at issue in the main proceedings, comprises 11 consecutive words thereof, is such as to constitute reproduction in part within the meaning of Article 2 of Directive 2001/29, if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation; it is for the national court to make this determination.”
“Q. You can put that away. When you get to the end of a season, a process, and you have come up with a fixture list which will be the final fixture list, obviously people in the know, know that you, Glenn Thompson, worked on it? A. Yes. Q. But just looking at the dates of the fixtures, the actual dates that come out at the end, there is nothing individual to you in that, is there? A. Well, I would say there probably is, because I have come up with a sequence, with a pairing grid, so what I have done there is determine which clubs are at home on certain dates. I have also on some fixtures given the possibility of one or two dates when that fixture with can be played. Boxing Day fixtures I have determined by hand. At the end of the day I think probably that fixture list is based on my knowledge of doing creating the fixtures and on the input I have put into it. If you were to give the fixture list to someone else, they would come up with a totally different solution. I think in that respect because of the solution I come up with, it is probably my work. If someone else did it, it will be totally different. Q. I know you have decided the fixtures, along with your colleagues by definition, as that is the job you were given, and it may be that someone else would come up with a different date, but if you think about the actual dates of homes and aways, the dates, that does not have a flavour of Glenn Thompson in it, does it? A. Some of the homes and aways are maybe because I have requested either the Football League or the Premier League to change the date they selected for the fixtures. If you look at the dates, I have set [said] to them, "can we play a fixture on this date in the season rather that the date you have originally chosen." It depends what you mean on "a flavour of Glenn Thompson." Q. Everybody knows that you were the person that did it, so we cannot have a blind tasting. If we could, nobody would say "Hull against Arsenal in March, that is pure Glenn Thompson" would they? A. You may find that some of the football managers do try to accuse me. Q. It does not have the stamp of your individuality on the actual result that comes out at the end, does it? A. No, it is a piece of work that we are contracted to do by the Football League so we do the work to the best of our ability to meet the requirements from the Football League and the Premier League.”