Ladbroke (Football) Ltd v William Hill (Football) Ltd
[1964] 1 ALL ER 465(Judgment by: Lord Evershed)
Ladbroke (Football) Ltd
vWilliam Hill (Football) Ltd
Judges:
Lord Reid
Lord EvershedLord Hodson
Lord Devlin
Lord Pearce
Judgment date: 21 January 1964
Judgment by:
Lord Evershed
My lords, the vital question in the present case is whether the respondents have established that copyright subsisted in the whole of the football betting coupons issued by them for the season 1960-61, that is to say, whether each such coupon is, within the terms of section 2 , as expanded by section 48, of the Copyright Act, 1956 , an original literary compilation. Lloyd-Jacob J. gave a negative answer to this question and the appellants' argument before your lordships was to the same effect, Alternatively, the appellants contended that if copyright could exist at all in the coupons it must be limited to that part of the document which is called its "headings." Upon this difficult matter there has been a difference of judicial opinion, and I have, for my part, not found the question one easy to answer, since the football coupon as a document has characteristics which distinguish it from other "compilations" which have been considered in the many cases cited to your lordships, and the problem is therefore in important respects novel. In argument the analogy was naturally drawn to cases in which anthologies or catalogues had been considered; and, although I think the example of the catalogue is useful for present purposes, it seems to me that, for reasons that later appear, there is perhaps the closest analogy in the decided cases with that of the diary including the tables of dates, weights and measures, etc., commonly found therein which came before this House in the case of G. A. Cramp & Sons Ltd. v. Frank Smythson Ltd .
No doubt the document (that is, the coupon) is ex facie a compilation in the sense that it is made up by putting together in writing (that is, in print) a number of individual items or components. Nonetheless, the coupon is peculiar in this respect: it is the actual instrument of trade used by those concerned in the business of bookmaking. It is the thing sent out by the trader to his actual or potential customers and is then returned by the customers with their selections of the wagers offered, that is, their choices of the numerous alternative forecasts which they are invited to make written thereon by them. In this respect the coupon might be comparable to a list or catalogue used by a trader who had in fact no premises available for visiting by customers - the catalogue containing a list of the items offered by the trader for sale with appropriate spaces in which the customer could indicate which of the items he wanted and would then return the list or catalogue with his name and address written thereon and (perhaps) a statement of the total sum involved.
In this case what corresponds to the articles offered for sale by the trader are the wagers offered by the bookmaker. As my noble friend, Lord Reid, has pointed out, the coupon is concerned with the association football matches played during the football season. On every Saturday during the season there are some 54 matches played by the professional teams of the English Divisions and the Scottish League. It is obvious that the different forecasts which such a list of matches could comprehend is in number very large indeed since, not only may the "punter" be invited to forecast which of two teams in any match (that is the home team or the away team) will win or whether the result will be a draw, but he may be also invited to forecast what the position in any match will be at half time, and also how many goals each team in any match may score both at half time and at the end of the match. It is also abundantly clear on the evidence produced in the case that the appropriate odds which the bookmaker may safely or profitably offer in respect of any forecast or group of forecasts is something which only great skill, industry and experience will discover; and further that the selection and description of the wagers which will attract custom is no less a matter of skill, judgment and experience. It was further made clear that, since potential customers will inevitably tend to be attracted by the same or similar wagers, certain of them have become very commonly adopted by those concerned in the trade - for example the so-called "Nothing Barred" list; so that anyone entering this type of business would almost inevitably have to include such a list and other similar wagers commonly found presented by other bookmakers and would be no more poaching upon the preserves of a competitor by so doing than would be a newcomer, for example, in the tobacconist trade by offering (and stating that he offered) certain well-known brands of cigarettes which every tobacconist would be expected by the public to offer for sale. To what has been said one other important consideration must be added, namely, that the list of matches played in each week has at all relevant dates been determined by the Football League who own the copyright in such list.
So it is said on the part of the appellants that the coupon as a document could have no originality, since it is essentially composed merely of a selection of well-known and well-tried wagers, and is composed each week merely by applying these well-known and well-tried wagers to all, or a limited number, of the League's list of matches. It was also said on the appellants' part that the selection involved in making up the coupons was no more than putting in print what were called "ideas" involving, therefore, nothing in the way of original literary work in any sense: and your Lordships' attention was directed to the well-known proposition that there is no copyright in ideas.
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 . 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. As I have earlier stated, the case upon its facts which might be thought nearest to the present is that already mentioned of G. A. Cramp & Sons Ltd. v. Frank Smythson Ltd . : for there the document in which copyright was sought was itself the thing, that is the diary, which was handed out by the trader to the customer. In that case, however, as appears from the statement of facts, there was no evidence whatever bearing upon the work which had been incident to the preparation of the plaintiff's diary and particularly to the tables contained in it. On the other hand, it was clearly proved that the various tables which were inserted in the plaintiff's diary were tables commonly so inserted in other diaries. Thus, in the course of his speech Viscount Simon L.C. said :
"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."
To the same effect Lord Macmillan said :
"The inclusion or exclusion of one or more of the tables constituting the ordinary stock material of the diary-compiler seems to me to involve the very minimum of labour and judgment." The distinction may be fine between those cases in which a list or table is regarded as properly entitled to copyright and those cases in which a list or table is not so regarded. This, indeed, readily appears from the case of Leslie v. J. Young & Sons where the compilation from the official timetables of a local timetable relating to a particular town was not regarded as constituting an original work entitled to copyright, though the compilation of certain circular tours in reference to the same town was regarded as so entitled. It must further be taken as well established, as stated by Lord Atkinson in delivering the judgment of the Judicial Committee in Macmillan & Co. Ltd. v. K. & J. Cooper , that the precise amount of knowledge, labour, judgment or skill which must be bestowed upon a compilation in order that it should acquire copyright within the meaning of the Act cannot be defined in precise forms but must in every case depend largely upon the special facts of that case and be very much a matter of degree.
On the facts of this case, and in the light of the authorities to which I have alluded, I conclude 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.
If I am so far right, then the question remains was there here sufficient copying to amount to infringement of the respondents' copyright in their relevant coupon? Upon the premise supposed, my answer to this question is clearly in the affirmative. It is not in doubt that what amounts in any case to substantial reproduction within the meaning of sections 6 and 49 of the Copyright Act again cannot be defined in precise terms but must be a matter of fact and degree. It will, therefore, depend, not merely on the physical amount of the reproduction, but on the substantial significance of that which is taken. Mr. Gardiner prepared for your lordships a table showing the striking similarities in fact between the respondents' relevant coupon and the coupon of the appellants, and I confess that I have found this table not less impressive after having seen Sir Frank Soskice's similar table showing (as undoubtedly is the fact) that a high proportion of the wagers in fact offered by the respondents may also be found offered by coupons produced by other rival bookmakers. It seems however, clear upon the evidence that Mr. C. Stein upon a vital occasion chose to reject the suggested form of coupon which had been prepared for his consideration in favour of adopting a coupon which was a remarkably close parallel to that of the respondents (and thereby of relying upon the skill and experience of the respondents in their past trading) not only in that the appellants' coupon contained 15 out of 16 of the headings to be found in the respondents' coupon, and substantially in the same order, but also in that the lay-out and presentation of these wagers, including the appendant notes, follow substantially the precedent found in the respondents' coupon. I do not of course forget - and this should be said in fairness to the appellants - that in this case beyond question a great deal of trouble had been taken, a great deal of work had been done by the appellants and their officers in working out the effect of the various wagers which they might offer and in reaching a conclusion upon what wagers they could offer, having regard particularly to the limits of their subscribed capital. In other words, this is not a case in which the appellants have been shown merely to have copied the respondents' coupon without having done any work or any substantial work whatever in regard to the conduct of the business in which they were about to engage. Nevertheless, for reasons which I have already endeavoured to state, there is in my judgment here a real distinction between the work done in arriving at conclusions upon what wagers could properly and safely be offered and the work done in designing the nature and appearance and general lay-out of the coupon as a literary compilation: and, in my judgment, for reasons which I have also endeavoured to state, I have felt compelled to the conclusion that there was here a sufficient substantial copying by the appellants to amount to an infringement of the respondents' copyright. I add only a reference to that part of the judgment of Lloyd-Jacob J. in which he himself came to the conclusion that there were "a number of features of correspondence which are to my mind too indicative of copying to be overlooked." The learned judge gave certain instances; but it was not of course necessary for him, having regard to the view which he had taken upon the existence of copyright in the coupon, to arrive at any precise conclusion as to the amount and extent of the copying in fact done by the appellants.
Having stated my conclusion, I only wish to add my regret to find myself differing from Diplock L.J. in this matter. With all respect, however, I have been unable to agree with him that (to use his words)
"although the whole document attracts literary copyright, because it is a 'compilation' of matches selected... the part of it which has been copied is not the part which is a compilation but is mere words descriptive of the type of wager offered at the stated odds..." As it seems to me, and for the reasons which I have already given, the respondents' coupon is, as a whole, a compilation, an original literary work, within the meaning of the Act and the reproduction of it by the appellants seems to me to be of sufficient significance to amount to a substantial reproduction. I also venture to think that the learned Lord Justice was not entitled to conclude, as he did, that the case of Purefoy Engineering Co. Ltd. v. Sykes Boxall & Co. Ltd . is authority for the view that a tradesman desiring to compete with another tradesman is entitled, not only to sell identical kinds of goods, but also for the purpose to copy the rival's list of goods which he had previously published.
I confess that I was at an early stage of the argument somewhat troubled by the possible effect of the form of the injunction granted by the Court of Appeal. Assuming that the respondents had established their right under the Copyright Act and had also proved reproduction by the appellants, then, no doubt, the form of the injunction is one appropriate and common in the circumstances. Nonetheless, I confess that I was somewhat disturbed lest the equitable remedy of the injunction might, having regard to the circumstances of the present case and particularly the correspondence in the types of wages offered by all bookmakers engaging in this kind of business, work inequitably upon the appellants by placing them in such difficulties as almost to prevent their continuing to carry on their business. I am glad, however, to say that upon this matter I have been since relieved. Mr. Gardiner was able to show that the appellants have in fact been able to conduct their business during the present football season by the use of coupons to which Mr. Gardiner freely admitted there could be no objection on the part of the respondents. It is also to be borne in mind that if the respondents should attempt to make an unjust and unfair use of the injunction it would be open to the appellants, upon producing a form of coupon which they could show did not involve any infringement of the respondents' copyright, to apply, upon giving appropriate undertakings (for example, to adhere to the coupon which they so produced) to have the injunction discharged.
For the reasons which I have attempted to state, I therefore agree that this appeal should be dismissed.