Ladbroke (Football) Ltd v William Hill (Football) Ltd
[1964] 1 ALL ER 465(Judgment by: Lord Devlin)
Ladbroke (Football) Ltd
vWilliam Hill (Football) Ltd
Judges:
Lord Reid
Lord Evershed
Lord Hodson
Lord DevlinLord Pearce
Judgment date: 21 January 1964
Judgment by:
Lord Devlin
My lords, I think that this appeal can be determined on quite a short point. It is an important point and one that has led to a difference of judicial opinion.
The respondents are bookmakers who devoted a great deal of time, skill and experience to the preparation of a fixed odds betting coupon for football matches. There is an infinity of ways of betting on the results of the 54 League matches that are played every Saturday during the season. The simplest and obvious way is for the bookmaker to offer odds against the punter picking winners out of the whole list; the more winners he wagers that he will pick the greater the odds. Then you can have "restricted" lists of selected matches in which there can be all sorts of variation; the punter can be invited to pick home wins, away wins and draws in various combinations. Then you can invite him to forecast scores full-time and half-time. The respondents' coupon contains 16 different lists of matches, each list permitting of a number of different wagers which the punter can make against odds fixed according to tables given in the coupon. It is common ground that the preparation of a coupon with bets of this sort requires a great deal of industry and skill. Among other things, skill is required in the selection of types of wagers that will appeal to punters while offering a good profit to the bookmaker, in arranging them on the coupon and giving them attractive headings.
That a document prepared in this way can be the subject of copyright is not disputed. Nor is it disputed that the appellants copied it. They were newcomers in a field in which the respondents had been successful pioneers. They thought rightly that the types of wagers selected by the respondents would be those shown by experience to be both attractive and profitable, and that they would do better to rely on the respondents' selection than to make their own. They also adopted to a large extent the arrangement and the headings.
If the argument did not go beyond this point, it would, I think, be plain that there was a breach of copyright. There is copyright in every original literary work, which by definition includes compilation, so that there can be copyright in such productions as timetables and directories, provided always they are "original." The requirement of originality means that the product must originate from the author in the sense that it is the result of a substantial degree of skill, industry or experience employed by him.
The appellants argue that the skill, industry and experience admittedly employed by the respondents was not employed in the production of the coupon. It was employed, they say, in the selection of types of wager. These wagers were, so to speak, the articles which the respondents offered for sale to the public. Like other salesmen, the respondents had as a matter of business to decide what sort of wares they were going to offer. The making of that choice is a matter of business which, it is argued, is irrelevant for the purposes of copyright. So the skill and labour devoted to the work of selection must be exercised. What is left, that is, the skill and labour required to express in writing a business decision, is negligible; and so there is no originality. This is the short point taken by the appellants which found favour with Lloyd-Jacob J. at the trial and with Diplock L.J. dissenting in the Court of Appeal.
My Lords, both on principle and on authority, it appears to me to be an unsound point. Any selection, for an example an anthology, requires a process of decision between alternatives and I cannot see that it matters whether the decision is made on literary or on business grounds. An anthology of saleable poems is as much entitled to protection as an anthology of beautiful poems. It is pointed out, quite righly, that an anthology is different from a list that is descriptive of articles for sale, since the anthology is itself the thing that is to be offered for sale. But if this distinction was a good one, there could never be a copyright in a catalogue of goods. Such a proposition would be contrary to Collis v. Cater, Stoffell & Fortt Ltd . This case was applied by the Court of Appeal in Purefoy Engineering Co. Ltd. v. Sykes, Boxall & Co. Ltd. , where it was described as a decision that had never been doubted. I do not think that your lordships should now overrule it, or that it can be distinguished on the grounds adopted by Diplock L.J. in the Court of Appeal. Masson, Seeley & Co. Ltd. v. Embosotype Manufacturing Co . is another case in which Tomlin J. held that there was copyright in a trade catalogue.
I do not think it necessary in this type of case that the work done should have as its sole, or even as its main, object the preparation of a document such as a list or catalogue or race card. It is sufficient that the preparation of the document is an object of the work done. If that be so, the work cannot be split up and parts allotted to the several objects. The value of the work as a whole must be assessed when the claim to originality is being considered. If, when the work of selection is being done, there is no intention of listing results, the matter might well be different. A line could then be drawn between the work of selecting and the work of recording a selection independently made. No such line can be drawn in the present case which is, to my mind, much stronger than the ordinary case in which goods are being catalogued. The whole object of the work done was the production of the coupon.
It was argued on behalf of the appellants, still on the analogy of the sale of goods, that a decision against them would amount to grave interference with freedom of trade. There is no copyright in business methods. If a wine merchant, it was argued, selected a dozen different wines as having in combination a special appeal, and arranged the bottles together in a shop window, there was nothing to prevent a rival trader copying the arrangement. Ought it to make any difference if, instead of a shop window arrangement, the merchant makes a list?
My Lords, I think, with respect, that this argument is based upon a fundamental misapprehension of the law of copyright. The law does not impinge upon freedom of trade; it protects property. It is no more an interference with trade than is the law against larceny. Free trade does not require that one man should be allowed to appropriate without payment the fruits of another's labour, whether they are tangible or intangible. The law has not found it possible to give full protection to the intangible. But it can protect the intangible in certain states, and one of them is when it is expressed in words and print. The fact that that protection is of necessity limited is no argument for diminishing it further; and it is nothing to the point to say that either side of the protective limits a man can obtain gratis whatever his ideas of honesty permit him to pick up.
I would therefore dismiss the appeal.