The Creativity Test and the "Effort" Test in the Issue of Copyright- An Update from Court
The Creativity Test and the "Effort" Test in the Issue of Copyright- An Update from Court
Adv. Hila Wohlgemuth, Adv. Gill Nadel
The appellants manage the football leagues in Britain and each year they hold a tournament in which the teams in each league play against each other. One of the appellants is a corporation which was established for commercially using the games in these leagues and for making a profit from managing the league, mainly from selling tickets for the games and holding their broadcasting rights. After finishing the task of setting the games, each league publishes an annual game schedule listing the order of the games, their dates, and the locations of the matches.
The respondent is the only corporation in Israel authorized to conduct gambling on sports games. Among her activities, the respondent arranges bets on football games of the British leagues, and for that she uses the game schedule boards for the gambling forms.
According to the appellants, the game schedule boards constitute a literary creation protected by Israeli law, and thus its use by the respondent for the purpose of gambling, constitutes a violation of their (the appellants) copyrights, and the profits made from these bets are also an unlawful gain on their expense.
The Supreme Court ruled that among the considerations that should be taken into account when dealing with recognition of copyrights, the important ones in our case are the "Creativity" test of the creation and the "Effort put into it" test.
"The Effort put into it" approach: According to this view, since it is unfair to allow a person to enjoy the fruits of another man's labor without permission or consideration, it is therefore necessary to consider the author's Effort in his creation to determine whether or not the Requirement of Originality is met .
"The Creativity" approach: The effort put into The Creation does not promise that the creation contributes in any way to society, and therefore, this approach focuses on the quality and nature of the Effort put into the creation , rather than its quantity.
As a rule, these two tests do not set a high standards for those wanting to protect their creations with copyrights. The Israeli court of law clarified by verdict the question of importance of these two tests as well as the relation between them. According to it, the protection of copyrights stands if the following conditions apply- there is a minimal amount of creativity, and the person attempting to protect his creation can show he meets the demands of both tests. Large amounts of effort can not compensate for lack of creativity and vice versa. Finally, since the Effort Test does not generally raise problems in succeeding, the Creativity Test is the one that will in the end determine whether the creation meets the originality requirement of the law.
The Effort and Creativity tests examine two central characteristics in a literary creation of a "collection" type: the way in which the creation's data was chosen and alternatively, in which order were they arranged and how they were designed in the creation itself.
The game schedule boards include all the football games played in the yearly tournament and only these games. The information on each game on the schedule boards includes the names of the teams playing, and the date and location of the match. The games are chronologically arranged, according to their date and hour. Next to each date the name of the home team appears and then the letter V (verse), and after that the name of the visiting team. Finally, in brackets, the location of the game appears. The entries on the schedule board are written in columns without any special design or arrangement.
The Supreme Court ruled that the Effort test is not an obstacle in our case. On the other hand, the creativity test is not met neither in the selection of data included in the tables nor in the way they are organized. The court emphasized that checking the existence of originality is relevant here, only for the process of the creation of the "collection" itself. All Creativity and Effort shown in the tournament layout is by no means relevant to the originality requirements of our case. Considering them would be like considering a request from a phonebook company's to recognize not only their creativity and efforts invested in preparing the layout of their clients' phonebook, but also the actual installation of the telephone infrastructure and its connection to the clients .
The same conclusion was reached regarding the layout and design of the information about the league games. It seems that the most logical way (though not the only logical way) to present all the league games taking place in a football tournament, is in the order presented on the schedule boards , which are far from being unique or having any individual expression, and according to the tests mentioned above , the layout of the information was also lacking in the required creativity measure necessary for the originality requirement.
Therefore by Israeli law, any use can be made of the data on each game, and on the game itself (as they are not protected data)- on the details of all the games together as one unit (since the manner of choosing the games is not protected), and in the way the games are presented on the schedule boards (since the schedule design is also unprotected)- all without any need to receive permission or pay the appellants.
The court added that even if the tables had met the originality requirement both in terms of effort put in to them and in terms of their creativity, this would not have been enough for the action to be accepted, since the respondent did not copy or publish them. It used only the facts presented in the collection, which as said is not protected. Further more, the design of the tables in which the respondent published the game data was fundamentally different from its layout on the schedule.
Similarly, the court rejected the claims of the appellants on the subject of unlawfully gain. The court did not find there to be unfair competition, since to begin with there could not be any competition between the respondent and the appellants (by law). The court ruled that the behavior of the respondent was not invalid, even according to the wide test of good faith, and added that it was not impossible that the organizing of bets even increases the awareness of the British league footballs games in Israel.
CA 8485/08 The FA Premier League Limited v. The Counsel for Organizing Sports Betting
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