"This article considers the European Court of Justice's (ECJ) decision in Football Dataco v Yahoo! on whether football fixture lists are protected by ‘database copyright’ under the Database Directive (following earlier ECJ decisions holding that such lists are not protected by the sui generis database right).The Court of Appeal for England and Wales, which referred this case to the ECJ, will be hearing the case further on 12-13 November and, while it's not yet know when judgment might be expected, those in the know believe that it will be sooner rather than later -- so any reader who would like to second-guess how that Court will apply the ruling is advised to read this article pretty soon.
A ‘database’ will only qualify for copyright protection under the Directive where the selection or arrangement of the data which it contains amounts to an original expression of the author's creative freedom. Accordingly, the ECJ has confirmed that any intellectual effort and skill in creating the data are irrelevant.
Further, the originality requirement will not be satisfied when the setting up of the database is dictated by technical considerations, rules or constraints leaving no room for creative freedom.
The decision is also a further example, in a line of cases starting with Infopaq, of the ECJ's emphasis on creative endeavour, with potential implications for copyright subsistence beyond the specific species of copyright that are the subject of harmonized rules (such as database rights and software copyright)".
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