Ladbroke Football Ltd v William Hill Football Ltd [1964] 1 WLR 273

Court: House of Lords

Judges: Lord Reid, Lord Evershed, Lord Hodson, Lord Devlin, Lord Pearce.

Date decided: 21 January 1964

William Hill sent out betting coupons to its customers each week. Ladbroke began to send out coupons which closely resembled William Hill's coupons.

Lord Reid

Lord Reid held that there was copyright in the coupons and that Ladbroke had reproduced a substantial part of the coupons.1)

The respondents had 16 lists: the appellants' coupon contains 15 of these lists, all of which appear in the same order as in the respondents' coupon. Moreover, the varieties of bets offered by the appellants in each of these 15 lists are almost identical with the offers by the respondents in their corresponding list. It is true that, with, I think, one exception, each of these lists is to be found in one or more of the other bookmakers' coupons and some are to be found in almost all of them. But the appellants do not suggest that the close resemblance between their coupon and the respondents' coupon is fortuitous. They admit that a good deal was simply copied from the respondents, and they say that they were entitled to do that. By no means everything was copied. For some of the lists they devised new names or headings, and the learned trial judge has found that they worked out for themselves the hundred or more different odds offered in respect of the various kinds of bet. And it was impossible to copy the selections of matches: the selections must be from the matches to take place in the following week, so there would not be time for one bookmaker to copy from the coupon of another matter which alters every week.((276.))

>In the present case, if it is permissible to take into account all the skill, judgment and labour expended in producing the respondents' coupon, there can be no doubt that it is "original." But the appellants say that the coupon must be regarded as having been produced in two stages: first, the respondents had to decide what kind of business they would do - what kinds of bets they would offer to their clients - and then they had to write these out on paper. The appellants say that it is only the skill, judgment and labour involved in the latter stage that can be considered and that that part of their operation involved so little skill, judgment or labour that it cannot qualify as "original." In fact, the respondents did not proceed in that way. Their business was to devise a coupon which would appeal to the betting public, and its form and arrangement were not something dictated by previous decisions about the nature of the bets to be offered. The appellants likened the coupon to a trader's catalogue of his wares, and argued that in considering whether a catalogue is entitled to copyright you must disregard the trader's skill and work in deciding what wares he will stock for sale and only consider the skill and labour involved in the actual preparation of the catalogue. I do not think that that is a true analogy. And even in the case of a catalogue there may be a question whether the work, in deciding what to sell, and the work, in deciding how to sell it, are not so inter-connected as to be inseparable. Copyright in a catalogue in no way prevents honest competition - any other trader can decide to stock and sell any or all of the catalogued articles, and he can thereafter make a new catalogue of his own wares. What he must not do is simply to copy the other trader's catalogue.((278.))

Lord Evershed

Lord Evershed recognised two distinct tasks, that of deciding the wagers and that of expressing them:

My lords, I have reached a conclusion adverse to these contentions. When you take one of these coupons in your hand and look at it, the right conclusion is, to my mind, that it falls sensibly and properly within the definition of an original literary compilation. True it is that no question of literary taste or quality is involved that would give to the coupon the award of literature as normally understood. But, having regard to the introduction of a compilation into the definition, that clearly cannot be a decisive factor, since otherwise such things as lists or catalogues could never have been held to have been properly subject to copyright. The result, in my opinion, is that the respondents' coupon is in truth a compilation in writing which is distinctive and original. True it is that a great amount of work is devoted to calculating the odds; but this is not a case in which, in my opinion, the resulting document, that is the coupon, has involved no further skill, labour or judgment - any more than was the list of matches themselves treated as involving no distinctive or original work by Upjohn J. (as he then was) in the case of the Football League Ltd. v. Littlewoods Pools Ltd. 11 There can, in my judgment, be no doubt upon the evidence in the present case that, when all the hard work has been done in deciding upon the wagers to be offered, there still remains the further distinct task, requiring considerable skill, labour and judgment (though of a different kind) in the way in which the chosen wagers are expressed and presented to the eye of the customer.((281.))

Lord Evershed proceeded to distinguish G A Cramp & Sons Ltd v Frank Smythson Ltd on the basis

that there was present here the requisite degree of skill, judgment and labour, not only in selecting out of the vast possible total of wagers those which should be offered, but also in the way in which the result of the selection was presented to the customer, including particularly the arrangement of the document and of its component headings and the way in which such headings were described and were coloured and also in the way in which, in the appropriate notes underneath the headings, the punter was informed of the possibilities open to him under each heading.((282-3.))

Lord Evershed found that there was copyright in the compilation and that the appellants had reproduced a substantial part of that work.2)

Lord Hodson

I have not overlooked the argument which appealed to Diplock L.J. based on the undoubted truth that copyright is not concerned with the originality of ideas, but with the expression of thought, in the case of literary work with the expression of thought in print or writing. The argument is supported by reference to the case of Purefoy Engineering Co. Ltd. v. Sykes Boxall & Co. Ltd. 28 The actual decision in that case does not assist the argument, but there is there drawn a distinction between skill and labour devoted to the selection of a range of goods in which the plaintiffs were intending to trade and that employed for the purpose of bringing into existence the literary work, namely, a catalogue. It may well be that there are cases in which expenditure of time and money has been laid out which cannot properly be taken into account as skill and labour involved in bringing into existence the literary work, be it catalogue or other compilation. This, however, is not, in my opinion, such a case, and I cannot accept that preparatory work must be excluded in this case so as to draw a line between the effort involved in developing ideas and that minimal effort required in setting those ideas down on paper. The catalogue cases such as Collis v. Cater, Stoffell & Fortt Ltd. 29 show that preparatory work can be relevant matter for consideration. That case concerned a catalogue which was nothing more than a simple list of certain articles described by their common names. Compare also Canterbury Park Race Co. Ltd. v. Hopkins, 30 where "preparatory" referred to in connection with a race card. The plaintiffs' work is in my opinion such that copyright subsists in it.((287-8.))

Lord Devlin

The appellants argue that the skill, industry and experience admittedly employed by the respondents was not employed in the production of the coupon. It was employed, they say, in the selection of types of wager. These wagers were, so to speak, the articles which the respondents offered for sale to the public. Like other salesmen, the respondents had as a matter of business to decide what sort of wares they were going to offer. The making of that choice is a matter of business which, it is argued, is irrelevant for the purposes of copyright. So the skill and labour devoted to the work of selection must be exercised. What is left, that is, the skill and labour required to express in writing a business decision, is negligible; and so there is no originality. This is the short point taken by the appellants which found favour with Lloyd-Jacob J. at the trial and with Diplock L.J. dissenting in the Court of Appeal.((289-90.))

>My Lords, both on principle and on authority, it appears to me to be an unsound point. Any selection, for an example an anthology, requires a process of decision between alternatives and I cannot see that it matters whether the decision is made on literary or on business grounds. An anthology of saleable poems is as much entitled to protection as an anthology of beautiful poems. It is pointed out, quite righly, that an anthology is different from a list that is descriptive of articles for sale, since the anthology is itself the thing that is to be offered for sale. But if this distinction was a good one, there could never be a copyright in a catalogue of goods. Such a proposition would be contrary to Collis v. Cater, Stoffell & Fortt Ltd. 32 This case was applied by the Court of Appeal in Purefoy Engineering Co. Ltd. v. Sykes, Boxall & Co. Ltd., 33 where it was described as a decision that had never been doubted. I do not think that your lordships should now overrule it, or that it can be distinguished on the grounds adopted by Diplock L.J. in the Court of Appeal. Masson, Seeley & Co. Ltd. v. Embosotype Manufacturing Co. 34 is another case in which Tomlin J. held that there was copyright in a trade catalogue.((290.))

>I do not think it necessary in this type of case that the work done should have as its sole, or even as its main, object the preparation of a document such as a list or catalogue or race card. It is sufficient that the preparation of the document is an object of the work done. If that be so, the work cannot be split up and parts allotted to the several objects. The value of the work as a whole must be assessed when the claim to originality is being considered. If, when the work of selection is being done, there is no intention of listing results, the matter might well be different. A line could then be drawn between the work of selecting and the work of recording a selection independently made. No such line can be drawn in the present case which is, to my mind, much stronger than the ordinary case in which goods are being catalogued. The whole object of the work done was the production of the coupon.((290.))

Lord Pearce

So in each case it is a question of degree whether the labour or skill or ingenuity or expense involved in the compilation is sufficient to warrant a claim to originality in a compilation.((292.))

>Applying those principles to the present case I feel little doubt that the plaintiff's coupon is entitled to copyright. The plaintiffs have been pioneers in this field and had invented various bets and nomenclatures some of which have been adopted by their rivals. A study of the coupons of 23 principal firms engaged in the fixed odds betting business shows that a large proportion of the bets in the plaintiffs' coupon are also offered by their rivals, and much similarity of language, arrangement and substance will be found in their coupons. It emerges clearly that the arrangement and contents of the coupons are the central point of the business - what one witness called the heart of the business. The coupon must contain an assorted selection of bets that will attract a customer and induce him to fill up the coupon in preference to rival coupons. To this end, the plaintiffs have devoted much work and money and ingenuity. Out of the vast number of bets that can be offered, they select and devise those which, while being profitable to them, will fill the coupon with the greatest allure.((292.))

>The appellants seek to say that this work is preliminary and has been directed to decisions as to what types of bets the laintiffs shall pursue in the business; that such decisions are merely ideas and as such not the subject of copyright; and that the work of actually writing down those ideas in the coupon is too easy and negligible to justify any claim to originality.

An argument on those lines was unsuccessful in the cases of the British Broadcasting Co. v. Wireless League Gazette Publishing Co. 43 and Football League Ltd. v. Littlewoods Pools Ltd. 44 There may be cases where such a dichotomy might be justified between some preliminary work and the actual transcription of a compilation, if the work was done with no ultimate intention of a compilation. But on the facts of the present case such an argument cannot succeed. The whole of the plaintiff's efforts from the beginning were devoted to arranging a coupon that would attract punters and be the basis of the plaintiffs' business. Types of bets were not considered in vacuo but only in relation to the part which they would play in the coupon.
In my opinion, the majority of the Court of Appeal rightly held that the plaintiffs had established copyright in the coupon.((292-3.))

note

* an interesting note: a number of the judges in this case explicitly accept the test of Peterson J that what is worth copying is prima facie worth protecting - a test which has been rejected by the HCA in The Panel.

  • again, this was a case of blatant copying - Ladbroke took the whole of the expression - the way the form was laid out and the headings; not just the 'facts' or 'ideas'.

1)
279.
2)
283-4