Ladbroke (Football) Ltd v William Hill (Football) Ltd
[1964] 1 ALL ER 465(Judgment by: Lord Pearce )
Ladbroke (Football) Ltd
vWilliam Hill (Football) Ltd
Judges:
Lord Reid
Lord Evershed
Lord Hodson
Lord Devlin
Lord Pearce
Judgment date: 21 January 1964
Judgment by:
Lord Pearce
My Lords, the question whether the plaintiffs are entitled to copyright in their coupon depends on whether it is an original literary work. The words "literary work" include a compilation. They are used to describe work which is expressed in print or writing irrespective of whether it has any excellence of quality or style of writing ( per rson J. in University of London Press Ltd. v. University Tutorial Press Ltd . . The word "original" does not demand original or inventive thought, but only that the work should not be copied but should originate from the author.
In deciding therefore whether a work in the nature of a compilation is original, it is wrong to start by considering individual parts of it apart from the whole, as the appellants in their argument sought to do. For many compilations have nothing original in their parts, yet the sum total of the compilation may be original. (See, for instance, the case of Palgrave's Golden Treasury referred to by the Privy Council in Macmillan & Co. Ltd. v. K. & J. Cooper .
In such cases the courts have looked to see whether the compilation of the unoriginal material called for work or skill or expense. If it did, it is entitled to be considered original and to be protected against those who wish to steal the fruits of the work or skill or expense by copying it without taking the trouble to compile it themselves. So the protection given by such copyright is in no sense a monopoly, for it is open to a rival to produce the same result if he chooses to evolve it by his own labours. (See Kelly v. Morris .
In Lamb v. Evans Lindley L.J. said with regard to a trades directory,
"It appears to me that the plaintiff has an exclusive right to the publication of those headings with the translations - not that he can restrain other people from publishing the same sort of thing if they go about it in the right way, but he has a right to restrain other people from copying his book. There is so much common to his book and to other books of the same sort that they very likely will contain the same information. It is just like the case of a man who publishes a map of a particular country: another may publish a map of the same country exactly like it, if he makes his map from the original materials; but the first can restrain the other from copying his map, which is a totally different thing."
Thus, directories, catalogues, and the like have been held to be original and to acquire copyright if the work that goes to their making has been sufficient: (Collis v. Cater, Stoffel & Fortt Ltd . ; H. Blacklock & Co. Ltd. v. C. Arthur Pearson Ltd . . But where the work of compilation was not "substantial" but "negligible" it was held to have no copyright: (G. A. Cramp & Sons Ltd. v. Frank Smythson Ltd . . The arrangement of the material is one of the factors to be considered. Viscount simon in that case 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."
So in each case it is a question of degree whether the labour or skill or ingenuity or expense involved in the compilation is sufficient to warrant a claim to originality in a compilation.
Applying those principles to the present case I feel little doubt that the plaintiff's coupon is entitled to copyright. The plaintiffs have been pioneers in this field and had invented various bets and nomenclatures some of which have been adopted by their rivals. A study of the coupons of 23 principal firms engaged in the fixed odds betting business shows that a large proportion of the bets in the plaintiffs' coupon are also offered by their rivals, and much similarity of language, arrangement and substance will be found in their coupons. It emerges clearly that the arrangement and contents of the coupons are the central point of the business - what one witness called the heart of the business. The coupon must contain an assorted selection of bets that will attract a customer and induce him to fill up the coupon in preference to rival coupons. To this end, the plaintiffs have devoted much work and money and ingenuity. Out of the vast number of bets that can be offered, they select and devise those which, while being profitable to them, will fill the coupon with the greatest allure.
The appellants seek to say that this work is preliminary and has been directed to decisions as to what types of bets the plaintiffs shall pursue in the business; that such decisions are merely ideas and as such not the subject of copyright; and that the work of actually writing down those ideas in the coupon is too easy and negligible to justify any claim to originality.
An argument on those lines was unsuccessful in the cases of the British Broadcasting Co. v. Wireless League Gazette Publishing Co . and Football League Ltd. v. Littlewoods Pools Ltd . There may be cases where such a dichotomy might be justified between some preliminary work and the actual transcription of a compilation, if the work was done with no ultimate intention of a compilation. But on the facts of the present case such an argument cannot succeed. The whole of the plaintiff's efforts from the beginning were devoted to arranging a coupon that would attract punters and be the basis of the plaintiffs' business. Types of bets were not considered in vacuo but only in relation to the part which they would play in the coupon.
In my opinion, the majority of the Court of Appeal rightly held that the plaintiffs had established copyright in the coupon.
Did the defendants reproduce a substantial part of it? Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that "there is no copyright" in some unoriginal part of a whole that is copyright. They afford no justification, in my view, for holding that one starts the inquiry as to whether copyright exists by dissecting the compilation into component parts instead of starting it by regarding the compilation as a whole and seeing whether the whole has copyright. It is when one is debating whether the part reproduced is substantial that one considers the pirated portion on its own.
In the present case the learned judge found that there was deliberate copying, but he did not decide whether the part copied was substantial. The majority of the Court of Appeal thought that it was. I agree with them. There are many things which are common to many coupons. But the plaintiffs' coupon had an individuality. The defendants clearly modelled their coupon on the plaintiffs' coupon and copied many of the things that give it this individuality. I cannot regard these thinks taken together as other than substantial. There is force in the words of Peterson J. in the case of University of London Press Ltd. v. University Tutorial Press Ltd . that "what is worth copying is prima facie worth protecting."
I would therefore dismiss the appeal.