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avenue of availability of life-saving drugs at an affordable price to the suffering masses in India.”
Pharmaceutical Research and Manufacturers of America president and chief executive officer John Castellani commented: “If countries begin to routinely use compulsory licences, we could see a ‘race to the bottom’ in which governments in the developing world walk away from their responsibility to support research and innovation in public health. In the absence of the investment made by our members, and the resulting research and development, there would be no generic medicines for the world’s patients.”
Julka added: “There is no denying the fact that this decision is likely to have far-reaching ramifications and would embolden the Indian generic companies to take this route more often. It has yet to be seen what strategies the innovator companies adopt to counter this onslaught by the generics.”
Bayer can lodge an appeal against Kurian’s decision to grant NATCO’s application for a compulsory licence to the Nexavar patent with the IP office’s Intellectual Property Appellate Board. n
CJEU rules in Football Dataco case
Database copyright protection does not extend to English and Scottish football fixture lists if they are produced in conditions that leave no room for their authors’ creative freedom, the Court of Justice for the European Union (CJEU) has ruled.
The CJEU explained in its March 1 preliminary ruling that the type of effort and skill needed to create football fixture lists does not normally justify protecting them under the European Database Directive.
The English and Scottish football leagues produce fixture lists and Football Dataco is responsible for protecting, marketing and commercialising them.
The league organisers and Football Dataco accused Yahoo UK, bookmaker Stan James and sports information provider Enetpulse of using the football fixture lists for news, information or betting activities without paying compensation.
Football Dataco and the league organisers originally argued that the Database Directive protected the football fixture lists with either copyright or the sui generis right in Europe, but the Court of Appeal for England and Wales ruled out the sui generis right due to previous CJEU rulings.
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It decided to stay the proceedings and refer questions to the CJEU to determine whether the fixture lists could be protected by database copyright.
Te UK court asked under what conditions a database may be protected by copyright under the Database Directive, and whether national laws could offer the same protection without necessarily matching the conditions set out under the directive.
Football fixture lists are produced according to several “golden rules” and require “a huge amount of time and effort”, according to Adam Rendle, a lawyer at Taylor Wessing LLP.
In its preliminary ruling, the CJEU said: “A ‘database’ ... is protected ... provided that the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author, which is a matter for the national court to determine.”
It added that the intellectual effort and skill of creating the data is not relevant to assessing the eligibility of the database for protection.
Te CJEU explained: “Te significant labour and skill required for setting up that database cannot, as such, justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.”
The author’s own “intellectual creation” has to be involved in the selection and arrangement of the data for the database to be protected. The CJEU suggested that Football Dataco and the league organisers have failed to show this, according to Rendle.
“The preliminary ruling does confirm the ability of database copyright to protect databases, but the CJEU viewed the process used, and the golden rules that have to be complied with in setting the fixtures, as not counting as the author’s own intellectual creation in the selection and arrangement of the data,” Rendle added.
In a statement that was issued aſter the ruling, Football Dataco said: “Te ruling makes it clear that football fixture lists are capable of database copyright protection and that it is for the national courts to determine whether or not such protection is afforded based on the facts of the case. We are confident that the UK Court of Appeal will uphold the database protection for the English and Scottish football leagues’ fixtures, which provide much-needed revenue at all levels of the professional game.” n
World Intellectual Property Review March/April 2012 7
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