Football League Ltd v Littlewoods Pools Ltd [1959] 1 Ch 637

Court: EWHC Chancery Division

Judges: Upjohn J

Date decided: 18 May 1959

A great deal of skill and labour was exerted each year to create a list of fixtures for the English football season. Over 2000 matches were to be played, and various factors had to be taken into account, including effects on ticket sales, the timings of the contemporaneous FA Cup matches, clubs who had installed floodlights and clubs hwo were not willing to play under lights, and so on. Over a period of time each year, the League would commission the creation of the fixtures tables and the production of fixtures lists for each club and a chronological master list. The creation of the lists for each club required a high degree of skill and ingenuity, but the creation of the chronological list from those lists required only diligent attention to detail.

The plaintiffs argued that the preparation of the chronological list required sufficient skill and labour to attract copyright. The plaintiffs then argued that the defendants had copied a substantial part of the chronological list or the clubs' fixtures lists when it created the weekly betting forms.

The defendants argued that there was no copyright in news or information, and that

A person having the right to predetermine future events cannot have copyright in the mere predetermination because it is not a literary work. [...] There cannot be a monopoly in facts, but only the way of presenting them, and it is a question of fact whether the skill and labour involved in presentation justify the incidence of copyright [...].

=

Subsistence of copyright: originality

Upjohn J considered the subsistence of copyright in the chronological list:

Compilations frequently, though not of course necessarily, consist of merely quasi statistical reference matter such as railway time tables, horse breeding material, catalogues, indices, solar and lunar calendar events, reference directories and so on. Such material has no literary merit in the sense of having grammatical composition. The chronological list falls into this category of compilation. As to such compilations the law is clear but difficulty arises in its application. Copyright for such a compilation can be claimed successfully if it be shown that some labour, skill, judgment or ingenuity has been brought to bear on the compilation. The amount of labour, skill, judgment or ingenuity required to support successfully a claim for copyright is a question of fact and degree in every case.(([1959] 1 Ch 650-1;

[

1959] 2 All ER 546 at 551-2.))

Upjohn J endorsed Lord Atkinson's suggestion in Macmillan & Co Ltd v K & J Cooper (1923) LR 51 Ind App 109 that whether there is sufficient knowledge, labour, judgment or literary skill or taste to justify copyright was a question of fact and degree.1)

Upjohn J appeared to agree with the defendant that a statutory monopoly would not be granted over the 'mere publication of the predetermination of future events':

Counsel rightly points out that in this case the league is in the unique position of being the only person in the world who, prior to publication, is in possession of the information contained in the fixture lists. The league creates that information and it alone knows who will play whom and where on any given date. Copyright, it is submitted, cannot be claimed in respect of such information. If, says counsel, you create information, for example, as to the composition of the next MCC team to try to recover the Ashes, the selectors cannot claim the exclusive right to publish it for it is mere information. One cannot, he submits, have a statutory monopoly (ie, copyright) in the mere publication of the predetermination of future events when such events are and must necessarily be of one's own creation. So that the publication of future football fistures is the mere announcement of information in the exclusive possession of the announcer, ie, the league, and anyone is entitled to use that information. Counsel admits that there is some limitation on that proposition viz, that, where the facts are represented in some special way, it then becomes a question of fact and degree whether the skill and labour involved in such special representation of the information is entitled to copyright. With these general propositions I agree. It is in their application to this case that the difficulty arises.(([1959] 1 Ch 637, 652.))

Upjohn J framed the question as whether or not the activities of the League in producing the preliminary facts could be separated from the production of the list:

The problem therefore at this stage resolves itself into the question whether, as counsel for the defendants submits, the activities of the league, its servants and agents (and that really means the activities of Mr Sutcliffe) in producing the fundamental scheme for the following season's football programme must be regarded as being an activity directed to the production of non-copy-right information to be made readily available to the public or whether the league's activities may properly be regarded as leading to the production of Mr Sutcliffe's documents, the clubs list or the chronological list, so that they may be regarded as compilations to which the entire energies of Mr Sutcliffe may be attributed. If the latter be the true view, then let me say at once that I am satisfied, on the evidence, that the energies of Mr Sutcliffe from start to finish are of a high order judged by any standard. His work represents much skill, labour, time, judgment and above all ingenuity, and on this view therefore is entitled to copyright.(([1959] 1 Ch 637, 654; [1959] 2 All ER 546, 553-4.))

However, Upjohn J considered that it was not possible to separate the skill which went into the determination of the fixtures from the act of setting down the chronological list:

Every case must depend on its own facts. It is perfectly true that Mr Sutcliffe was not employed to produce a work of art per se nor even a work primarily as a book of reference such as a directory or railway guide, but he was employed to produce the best possible programme of fixtures. Of necessity, however, that programme had to be reduced to writing. The league's duty is to arrange the best possible programme of games to please the football public in general and the clubs' finances in particular and they can only do that by producing a list or lists of those games. If, as a result of prolonged cogitations, Mr Sutcliffe reaches the conclusion that it will be best if, for example, Arsenal plays Manchester City at Highbury on 20 September 1958 (as indeed the programme provided), he is doing so no doubt primarily because that is best from the point of view of leageu football, but if as the result of the whole of his prolonged and skilled cogitations he produces in a particular form the season's list consisting of 2,028 matches or thereabouts, in my judgment he or the league (who have, by direct assignment, any copyright which might otherwise vest in him) are entitled to claim that the chronological list is produced as a result of the entire skill, labour, time, judgment and ingenuity of the league, their servants and agents. In my judgment, on the facts of this case, it is not open to the defendants to try to dissect and break down the efforts of Mr Sutcliffe in the way suggested.(([1959] 1 Ch 637, 655-6; [1959] 2 All ER 546, 554-5.))

Accordingly, the League were entitled to copyright in the chronological list.2).

Interestingly, Upjohn J appeared to draw a distinction between the copyright in the list and the facts it contained. It was relevant in this case that the defendants lifted the weekly lists wholesale and could not be said to be merely taking the facts:

The undisputed facts fundamental to my decision in this case are that the chronological list itself is taken by the defendants and used by them line by lien and division by division in exactly the same order as the league for the preparation of each of their coupons work by week throughout the season (except in the few cup tie weeks, which together with a few league match changes, as I have already pointed out, may be disregarded as be minimis) and they do this deliberately and under a claim of right so to do. True it is in this case there is no competition between the league and the defendants, but as I have already pointed out that is not decisive of the case. If the defendants like to use the information contained in the chronological list and prepare their own lists by “scrambing” the order of matches so that the divisions were all mixed up and so that there was no alphabetical order, it is possible that it could be successfully argued that they were using only the information and were not reproducing the compilation, but that is not a question which I decide, nor do I speculate on the defendants' customers' reactions on receiving such a list. What in fact the defendants have done each week is substance to copy exactly the league list for that week, thoughout the season.(([1959] 1 Ch 637, 657; [1959] 2 All ER 546, 555-6.))

Upjohn J accordingly held that the League was entitled to copyright in the chronological list, and the defendants had infringed that copyright by systematically reproducing the list week by week.3)

It would appear that this case stands for the principle that the skill and judgment which goes into the preparatory work to create a list of this kind cannot be disregarded when considering whether the list is sufficiently original to be a copyright literary work.

However, it appears that Upjohn J is suggesting that the copyright in such a list is thin enough that the taking of individual facts and not their layout and presentation would not reproduce a substantial part of the list. Accordingly, it appears that the copyright which subsists in the list does not cover the individual facts but merely the aggregation of those facts in the list itself.


1)
[1959] 1 Ch 651.
2)
[1959] 1 Ch 637, 656
3)
[1959] 1 Ch 637, 658.
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