By Yasmin Farhumand, German Lawyer at Hambach & Hambach Law Firm
It is generally known that the sports betting market will be opened at the beginning of 2012. The only issue which is still being discussed is how this is going to take place. In the meantime, the German football league (DFL) does not want to leave its fate in the hands of the 15 states and the draft submitted by them (E 15 draft). If the DFL has its way, the Bundesliga fixtures will, from January 2012 onwards, no longer be available for everybody for commercial utilisation, but only for those who pay a licence fee to the DFL. By doing so, the DFL intends to prevent the sports betting providers from using the Bundesliga fixture list free of charge as a basis for their bets. The DFL is of the opinion that the fixture list is subject to copyright protection. Others hold the same view: The national basketball and handball leagues have now followed suit and are claiming their share of the profits from sports betting.
Fixture list protected by copyrights – Is this viable?
The German copyright act (UrhG) generally only protects works which constitute a personal intellectual creation.
Under section 4 (1) of the UrhG, a collection of data which constitutes a personal intellectual creation due to the selection and arrangement of the elements may enjoy protection under copyrights (so-called compilation works). The term „data“ is defined as a formalistic presentation of facts, concepts or instructions, suitable for communication among humans or machines. Initially, this sounds as if the Bundesliga fixtures may be covered by copyright protection as a collection of data.
However, the most important element is the „personal intellectual creation“ which must originate from an individualised arrangement and selection of the various parts. The DFL sees the intellectual creation in the selection of the matches and dates which is made on the basis of the games‘ attractiveness and of security issues. An argument in favour of an individualised arrangement could be that the fixtures are not determined by a random generator, but are coordinated with other events, such as the Champions League, the DFB Cup and the Europa League. Furthermore, the matches sometimes change due to the teams which are promoted and relegated at the end of a season. Therefore, it can certainly be conceded that the selection of dates and the arrangement of the pairings during the compilation of the fixture list entails some coordination work.
In order to answer the question as to whether the league fixture list enjoys copyright protection, the decisive element is, however, not the amount of required coordination work, but the creative form of presentation. This is an argument in favour of an exclusion of the security issues invoked by the DFL, i.e. the requirement to coordinate the fixtures with the Red Cross and the police, as well as with other football events, from the evaluation, as they do not constitute a part of the fixture list’s content.
Also, the fact that the fixture list for the 18 teams is compiled every year in accordance with pre-defined and tested rules, may be an argument against a sufficient level of creative input. The 34 match days are distributed over 52 weeks taking into consideration fixed off-season periods in summer and winter, and breaks for international matches. Furthermore, the fixtures are always presented in the same tabular form. A mere schematic and routine selection and arrangement, however, does not suffice to trigger copyright protection (see Wandtke/Bullinger, Urheberrecht, 3rd edition, 2009, § 4 par. 6; Dreier/Schulze, Urheberrechtsgesetz, 3rd edition, 2008, § 4 par. 14).
In conclusion, this means that a personal intellectual creation only exists if the collection is based on an individualised order principle which distinguishes it from other collections. Courts have, for instance, decided that neither the selection and arrangement of stock market data is sufficiently creative (OLG of Hamburg GRUR 2000, 319), nor is the collection of biographic data without a conceptual presentation (OLG of Hamburg, ZUM 1997, 145).
Examples from France and the UK
The idea to invoke protection for a fixture list is not a new idea in Europe. In 2008, the Fédération française de tennis (FFT) filed a law suit against sports betting providers with the aim of banning online bets on the matches played at the Roland Garros tournament. In this case, the FFT invoked its utilisation monopoly as the organiser of the tournament. The Court ultimately decided in favour of the FFT. However, the decisive issues in this dispute were not the financial interests, but rather protection against betting manipulation which had damaged the tournament in the past.
In England, the issue of the exploitation of the rights to the football fixtures has already been the object of legal proceedings. In Football DataCo versus the bookmaker Stan James, the first instance decided that the league fixture lists are capable of protection as so-called databases. During the appeals proceedings, the court of appeal referred to the European Court of Justice various questions on the protectability of football fixture lists as databases.
The decision by the ECJ, expected for March 2012, is being followed with interest by the DFL. However, the proceedings do not relate to copyrights in the league fixture list as a (data) work, but rather to their legal protection as mere databases. This makes a significant difference, also under German law: Collection works and data bases works only are subject to copyright protection under section 4 of the UrhG if they – as has been described above – constitute a personal intellectual creation. With the Database Directive (EU Directive 96/6/EC on the legal protection of databases), a sui generis right was introduced on 01 January 1998 in section 87a of the UrhG, for databases where the procurement, revision or presentation of the contents requires significant investment.
It is questionable whether the DFL will be able to invoke this sui generis right with regard to the Bundesliga fixtures.
In a judgment of 09 November 2004, the ECJ commented on the conditions which must be fulfilled during the compilation of a football fixture list in order for the associated work to be classified as an „essential investment“, and came to the conclusion that the determination and arrangement of the data of which the football fixtures consist does not require any particular efforts on the part of the professional football leagues, as they are directly involved in the production of these data.
The words of the ECJ in this context were:
„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.“
(Fixtures Marketing Ltd. vs. Oy Veikkaus Ab – C46/02, par. 47)
A decision on the protectability of league fixtures as database works has, however, not been given up to now.
Conclusion and outlook
The discussion regarding the protectability of league fixtures will certainly be a hot topic in Germany next year in the context of the liberalisation process. Whilst editorial coverage on television and in printed media will probably not be affected by potential restrictions, all commercial users, such as the sports betting providers, should gather information on their rights at an early stage, in order to avoid the risk of written warnings being issued by the leagues. Ultimately, it will be for the courts do decide whether or not there is something in the issue of copyright protection for the league fixture lists.
Source: TIME LAW NEWS 3/2011 (www.timelaw.de) Hambach & Hambach Law Firm