Ladbroke (Football) Ltd v William Hill (Football) Ltd
[1964] 1 ALL ER 465(Judgment by: Lord Reid)
Ladbroke (Football) Ltd
vWilliam Hill (Football) Ltd
Judges:
Lord ReidLord Evershed
Lord Hodson
Lord Devlin
Lord Pearce
Judgment date: 21 January 1964
Judgment by:
Lord Reid
Their Lordships took time for consideration.
January 21, 1964.. My Lords, the respondents are well known bookmakers. Each week during the football season they have for many years sent out to their clients - referred to as punters - a fixed odds football betting coupon. The appellants are also old-established bookmakers. They decided to enter this field of betting in 1959 and began to send out coupons which closely resembled the respondents' coupons. The respondents claim copyright in their coupons and allege infringement by the appellants. The appellants maintain that only certain parts of the respondents' coupons are copyright and they deny infringement. The decision of Lloyd-Jacob J. in favour of the appellants was reversed by the Court of Appeal (Lord Denning M.R. and Donovan L.J., Diplock L.J. dissenting) and an injunction was granted. The appellants now seek to have the order of Lloyd-Jacob J. restored.
A coupon is a sheet of paper on which are printed various lists of forthcoming matches between well-known teams. One called "Nothing Barred" is a full list of some 50 matches. The others are shorter lists of matches selected by the bookmaker from the full list. The bets offered in respect of these lists vary in character. From some the punter must pick a certain number of winners. From others he must pick so many home or away wins or draws or a combination of these. And there are other kinds of bets offered. The variety of bets offered is very great. The respondents' coupon contained 16 lists, each with an appropriate name and we were told that no less than 148 different varieties of bet were offered if one adds up all those offered under each list. Naturally the odds offered differ widely - from as low as 5-2 to as high as 20,000-1. And the respondents have one list of peculiar difficulty where they offer £100,000 for twopence.
It is not disputed that a vast amount of skill, judgment, experience and work has gone into building up the respondents' coupon. There is keen competition in this field. If the bookmaker selects matches too easy to forecast, or offers too favourable odds, he may lose very large sums. If his selections of types of bet, matches and odds do not appeal to punters they will go to rival firms. It appears that the respondents have not altered the general form of their coupon since 1951. They only occasionally alter the odds offered for each type of bet. What is new each week is the selection of the matches which are to go into the lists.
When the appellants decided to enter this field they had to devise a suitable form of coupon. Their manager who was given this task was formerly employed by the respondents, but it appears that he tried to devise a form of coupon substantially different from the respondents' coupon. The coupons of some 20 other firms in the business were produced at the trial, and, while they have a general similarity, they vary very much in the nature of their lists and the variety of bets offered in respect of many of the lists. Most of them were studied by the appellants' manager, but his proposals were rejected by the appellants' managing director, who adopted a form closely similar to the respondents' coupon. 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.
The first question to be determined is whether or to what extent copyright attaches to these coupons. The respondents say that a coupon must be regarded as a single work and that as such it is protected by copyright. The appellants seek to dissect the coupon. They would not only dissect it into the 16 lists, but they would further dissect each list into heading, selection of matches, and statement of odds offered for the various kinds of bets. They admit that there is copyright in the selection and in the statements of odds offered: they can safely do that because there they did not copy. But they deny any copyright as regards the rest of the coupon.
The Copyright Act, 1956 , provides, by section 2 , that copyright shall subsist in every original literary work and, by section 48 , that literary work includes any written table or compilation. I have no doubt that the coupon must be treated as a single compilation. The appellants' dissection theory is derived from some statements in infringement cases and I must, therefore, examine at this point the law regarding infringement. Copyright gives the exclusive right to do certain things including "reproducing the work in any material form" ( section 2 (5) ), and reproduction includes reproduction of a substantial part of the work ( section 49 (1) ). Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken. One test may be whether the part which he has taken is novel or striking, or is merely a commonplace arrangement of ordinary words or well-known data. So it may sometimes be a convenient short cut to ask whether the part taken could by itself be the subject of copyright. But, in my view, that is only a short cut, and the more correct approach is first to determine whether the plaintiffs' work as a whole is "original" and protected by copyright, and then to inquire whether the part taken by the defendant is substantial.
A wrong result can easily be reached if one begins by dissecting the plaintiffs' work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be. Indeed, it has often been recognised that if sufficient skill and judgment have been exercised in devising the arrangements of the whole work, that can be an important or even decisive element in deciding whether the work as a whole is protected by copyright.
The appellants relied on cases where it has been held that in general the title of a work is not copyright. Those cases are dealt with by Lord Wright in the judgment of the Privy Council in Francis Day & Hunter Ltd. v. Twentieth Century Fox Corporation Ltd. , and I think that he rightly expressed the principle when he said:
"The copying which is complained of is the use of the title, and that is too unsubstantial on the facts of this case to constitute an infringement." None of the decisions cited in argument appears to me to conflict with the view that you must first decide whether the plaintiffs' work as a whole is entitled to copyright and then see whether the part taken is a substantial part. The only apparent exception would seem to be a case such as Leslie v. J. Young & Sons , where a compilation was treated as consisting of severable parts, one of which was held to be original work and copyright while the rest was not.
The appellants' main argument was based on quite a different ground. They deny that the respondents' coupon is an original compilation. There is no dispute about the meaning of the term "original."
"The word 'original' does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of 'literary work,' with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author."Per Peterson J. in University of London Press Ltd. v. University Tutorial Press Ltd . And it is not disputed that, as regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation.
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.
The appellants rely on Purefoy Engineering Co. Ltd. v. Sykes Boxall & Co. Ltd . and, in particular, on some observations on p. 99. As two of your Lordships were parties to that decision I need not say more than that I am satisfied that those observations do not assist the appellants. It is to be observed that earlier in the judgment the decision in Collis v. Cater, Stoffell & Fortt Ltd . was expressly approved. There North J. held a somewhat lengthy chemist's catalogue entitled to copyright although it contained "nothing whatever but a simple list" of drugs, etc. with names and prices which the plaintiff kept in stock or could obtain to order.
The cases where copyright has been denied to a compilation are comparatively few, the most important being G. A. Cramp & Sons Ltd. v. Frank Smythson Ltd . There the work was a pocket diary with a number of pages containing information such as is usually found in diaries. The trial judge, Uthwatt J., had said that he could not see that the selection of lists and tables and the arrangement of the diary were anything other than a commonplace selection of gobbets of information and a commonplace arrangement, neither of which involved any real exercise of knowledge, labour, judgment or skill. Viscount Simon L.C., having approved a passage in the judgment of Lord Atkinson in Macmillan & Co. Ltd. v. K. & J. Cooper , to the effect that the precise amount of knowledge, labour, judgment or literary skill or taste which the author must bestow in order to acquire copyright must in each case be very much a question of degree, went on to say :
"There was no evidence that any of these tables was composed specially for the respondents' diary. There was no feature of them which could be pointed out as novel or specially meritorious or ingenious from the point of view of the judgment or skill of the compiler. It was not suggested that there was any element of originality or skill in the order in which the tables were arranged." I think that the present case differs from that case in every one of these features, and I am satisfied that copyright did attach to the respondents' coupon.
As regards infringement, I have already indicated the extent to which the appellants copied from the respondents' coupon. That appears to me to amount to a very substantial part of the coupon, both in quantity and quality. In this connection, I think that there is much wisdom in the reference by Petersen J. to the "rough practical test that what is worth copying is prima facie worth protecting" - in University of London Press Ltd. v. University Tutorial Press Ltd . I would therefore hold that there has been infringement, and that this appeal should be dismissed.