Why does Newcastle United want to play Sunderland on a Saturday or Sunday?

The answer is: “To reduce the risk of disorder amongst fans” (and with kick off no later than 1.30 pm).  For Premier League enthusiasts with an unhealthy interest in fixture planning, the recent UK High Court decision of Football Dataco Ltd v Brittens Pools Ltd [2010] EWHC 841 (Ch) offers more than you want to know.

It is also a seminal decision, offering hope to database owners previously concerned that Article 7 of the EU Database Directive (sui generis database protection) had been construed too narrowly to afford much practical protection.

The claimants organise Premier League and Scottish Football League matches.  They also own the rights to the relevant fixture lists.  The defendants used the fixture lists without licence, mainly to offer betting services.

Justice Floyd found in favour of the claimants on the basis of Article 3 of the EU Database Directive, not Article 7.  So, what’s the difference between these two provisions? 

Article 7 provides database protection simply by reason of the investment in making the database, as distinct from any exercise of skill or judgment in its development.  However, whilst this sounds – on its face – good for database owners, Article 7 has been construed narrowly by the courts.  Based on the peculiarities of the language of Article 7, database protection has been denied to those who created the data in some way, rather than collecting it from a pre-existing source.  Fixture list information is regarded as data which is “created” rather than “sourced”.

Article 3 is the previously unknown “poor cousin” of the EU Database Directive, although it’s now been catapulted into heavyweight contention through this decision.  Why has Article 3 previously languished?  Well, it seeks to impose a higher test for protection than Article 7.  The database will be protected “if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation”.

In finding that the higher threshold in Article 3 was satisfied, Justice Floyd was persuaded by the elaborate process followed mainly by a “Mr Thompson” (the “fixtures guy” since 1992) to arrive at a fixture which offended as few stakeholders as possible.  This included recourse to the “so-called golden rules”.  You can find the golden rules at para 10 of the decision.

For trivia buffs, you may be interested to know that:

  • Chelsea requests that it play away on the date of the Notting Hill Carnival (if someone knows why, please let us know); and
  • Everton and Liverpool are paired so that neither can play at home on the same day (based on their geographical proximity in the Liverpool area). 

Notably, the very last stage of the process involves a Fixtures Working Party meeting, and a meeting with police representatives.  As the judge observed, in the 2008-2009 season, 56 changes were made as a result of input from this final stage!

Justice Floyd may or may not have the last word on this case.  If there is an appeal, we will follow its progress.

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