Fixtures Lisit Copyright Case in Israel
by Tony Greenman, attorney at law
The Israeli Supreme Court has affirmed the 2008 judgment of the Tel-Aviv District Court, holding that football fixture lists are not protected by copyright. In doing so, the court dismissed the appeal of the British Football Leagues who had sued the Israel Sports Betting Council (ISBC) claiming copyright infringement in the fixture lists, due to the use made by the ISBC of those lists in its betting forms.
The court clarified that in order for a work to be original and protected under Israeli copyright law, it must be the fruit of both minimal investment (in the form of labor) and minimal creativity on behalf of the person claiming to be the creator of the work. Since, the first hurdle (investment) is easier to pass than the second hurdle, in most cases the existence of creativity, or lack thereof, will normally be decisive in determining if a work is protected.
The fixtures as such are unprotected facts. Nonetheless, the Leagues claimed that the fixture lists are protected compilations of facts. The clause in the Israeli Copyright Act relating to databases and compilations is based on the TRIPS agreement and similar to the EC Directive in that it grants copyright only to databases and compilations in which are original by virtue of the selection or arrangement of the data or works contained therein. The creativity-originality required can be found in the exercise of skill, judgment and imagination. The court accepted, inter alia, the argument of the ISBC that while skill or judgment are clearly exercised in creating the fixtures as such, no skill or judgment is required or exercised in the creation of the fixture lists as literary works. In compiling the lists from the facts (the fixtures) the Leagues make no selection at all, but rather include all the fixtures of the leagues. Even if one was to say that these do not include all the fixtures to be played in Britain (such as amateur games and school matches) there is no stamp of personality on such a choice. Furthermore there is nothing original in the arrangement of the fixtures which is done chronologically and alphabetically.
The court also rejected the claim of the Leagues that the ISBC was unjustly enriched by its use of the fixtures. There is nothing unjust in the use made of the unprotected facts included in the lists and if there is any enrichment it is not accompanied by and extra element of unfair competition or bad faith as required under the A.S.I.R. ruling. In fact, it may be that the activities of the ISBC actually add to the interest in the British Football matches in Israel, thus increasing the value of the broadcasting rights.
The court noted that Tony Greenmans suggestion that the law of unjust enrichment should not in general be applied in the field of copyright is in line with recent Supreme Court cases which tend to limit the application of this law. Nonetheless, the court did not need to rule on this point since in any event, even under the A.S.I.R ruling the ISBC had not been unjustly enriched in this case.
An unofficial translation of the case to English is available here.
The ISBC was represented by Tony Greenman and Assaf Posner.
C.A. 8485/08 The Premier League Limited v. The Sports Betting Council