Ladbroke (Football) Ltd v William Hill (Football) Ltd

[1964] 1 ALL ER 465

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(Decision by: Lord Hodson)

Ladbroke (Football) Ltd
vWilliam Hill (Football) Ltd

Court:

Judges: Lord Reid
Lord Evershed

Lord HodsonLord Devlin
Lord Pearce

Hearing date: 1963 Nov. 18, 20, 21, 25, 26, 27, 28
Judgment date: 21 January 1964

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Decision by:
Lord Hodson

My lords, the first question is whether copyright subsists in the plaintiffs' fixed odds football coupons. The second is whether the defendants have, if the answer to the first question is in the affirmative, infringed the plaintiffs' copyright by appropriating a substantial part of their labours by the publication of similar coupons.

The plaintiffs failed in their action at first instance because Lloyd-Jacob J. answered the first question in the negative, holding that they were not entitled to copyright protection in respect of their coupons. On appeal the Master of the Rolls and Donovan L.J. held that the plaintiffs were entitled to protection and that their copyright had been infringed and granted an injunction. Diplock L.J. dissented and was of the same opinion as Lloyd-Jacob J.

The coupons are protected, if at all, as compilations which are by definition treated as literary work, see section 48 (1) of the Copyright Act, 1956 . The words "literary work" cover work which is expressed in print or writing irrespective of the question whether the quality or style is high, as was pointed out by Peterson J. in University of London Press Ltd. v. University Tutorial Press Ltd . The coupons are compilations, being derived from various sources, unless they are not original, for copyright subsists only in original literary work, see section 2 (1) of the Act. Thus, commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection will not be entitled to copyright. "Whether enough work, labour and skill is involved, and what its value is, must always be a question of degree." G. A. Cramp & Sons Ltd. v. Frank Smythson Ltd . per Porter.

The defendants have sought to argue that the coupons can be dissected and that upon analysis no copyright attaches to any of their component parts and accordingly no protection is available.

In my opinion, this approach is wrong and the coupons must be looked at as a whole. Copyright is a statutory right which by the terms of section 2 of the Act would appear to subsist, if at all, in the literary or other work as one entity. True it is that the list of matches, 53 in number, to be played on a Saturday is not the subject of the plaintiff's copyright nor did the defendants copy it. Similarly, the restricted lists of matches which the defendants used was not copied from that of the plaintiffs; the lists came out simultaneously. Again, the odds quoted in the lists, involving mathematical calculation, were worked out independently and not copied, as the learned judge found. A significant feature of the plaintiffs' or, indeed, of any other coupon is the method of arrangement which has been described colloquially as the lay out. I prefer to use the word arrangement which is relevant in considering labour involved in making a compilation. In Lamb v. Evans a trades directory consisted of advertisements classified under headings denoting the different trades composed by the plaintiff or persons found by him to compose them. The Court of Appeal, affirming Chitty J., held that the headings were the subject of copyright. Bowen L.J. said :

"They are the result of literary labour, both as regards the composition of the headings themselves and their collocation or concatenation in the book."

I would not therefore accept the submission of the defendants which appears to have been accepted by the learned Master of the Rolls that except where artistic merit is concerned no question of "lay out" or, as I prefer to call it, method of arrangement is relevant. Moreover, in the case of the plaintiffs' coupon the selection of headings showing the choice of bets offered by the plaintiffs is itself shown to have been the result of skill and labour expended on them.

It was submitted by the defendants that these headings were the equivalent of titles of a book or play and that titles could not be protected. They relied on two cases, Dicks v. Yates and Francis Day & Hunter Ltd. v. Twentieth Century Fox Corporation Ltd. , neither of which support the proposition that, as a matter of law, copyright cannot subsist in titles. No doubt they will not as a rule be protected, since alone they would not be regarded as a sufficiently substantial part of the book or other copyright document to justify the preventing of copying by others. In any event, there is good authority for the protection of headings in a proper case in Lamb v. Evans where the headings in question were elaborate and given in each case in English, French, German and Spanish.

Even if the defendants had been able by their method of approach to destroy piecemeal the plaintiffs' claim to copyright in the way they have sought, this would not effect their object for it is clearly established that a claim to copyright may subsist by virtue of selection alone. In the judgment of the Privy Council delivered by Lord Atkinson in Macmillan & Co. Ltd. v. K. & J. Cooper the following extracts from the judgment of Sir Arthur Wilson appear (this relates to Palgrave's Golden Treasury, the subject of the action Macmillan v. Suresh Chunder Deb tried by Sir Arthur Wilson in Calcutta):

"In the case of works not original in the proper use of the term, but composed of, or compiled or prepared from materials which are open to all, the fact that one man has produced such a work does not take away from anyone else the right to produce another work of the same kind, and in doing so to use all the materials open to him. But, as the law is concisely stated by Hall V.-C. in Hogg v. Scott , the true principle in all these cases is that "the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work; that is, in fact, merely to take away the result of another man's labour or, in other words, his property." The decision in Palgrave's case depends in no way on the fact that the copyright in the works of the original author had lapsed, and its correctness cannot, I think, be doubted. The copyright of the author of the anthology resided in the aggregate of the work.

If the plaintiffs have employed more than negligible skill and labour in their selection of 16 lists containing varieties of bets which they offer to their customers they are entitled to be protected in respect of their coupons as being original compilations.

The evidence shows that this section was a highly skilled matter involving, as the learned Master of the Rolls said, selections from an infinity of choice and much expenditure of time, money and effort. I agree, therefore, with the majority of the Court of Appeal that the plaintiffs' coupons are entitled to protection as compilations, for the amount of skill and labour employed is not to be regarded as negligible.

I have not overlooked the argument which appealed to Diplock L.J. based on the undoubted truth that copyright is not concerned with the originality of ideas, but with the expression of thought, in the case of literary work with the expression of thought in print or writing. The argument is supported by reference to the case of Purefoy Engineering Co. Ltd. v. Sykes Boxall & Co. Ltd . The actual decision in that case does not assist the argument, but there is there drawn a distinction between skill and labour devoted to the selection of a range of goods in which the plaintiffs were intending to trade and that employed for the purpose of bringing into existence the literary work, namely, a catalogue. It may well be that there are cases in which expenditure of time and money has been laid out which cannot properly be taken into account as skill and labour involved in bringing into existence the literary work, be it catalogue or other compilation. This, however, is not, in my opinion, such a case, and I cannot accept that preparatory work must be excluded in this case so as to draw a line between the effort involved in developing ideas and that minimal effort required in setting those ideas down on paper. The catalogue cases such as Collis v. Cater, Stoffell & Fortt Ltd . show that preparatory work can be relevant matter for consideration. That case concerned a catalogue which was nothing more than a simple list of certain articles described by their common names. Compare also Canterbury Park Race Co. Ltd. v. Hopkins , where "preparatory" referred to in connection with a race card. The plaintiffs' work is in my opinion such that copyright subsists in it.

There remains the question whether there has been a substantial appropriation by the defendants of the independent labour of the plaintiffs. Substantiality depends on quality, not quantity, as is illustrated by the case of Hawkes & Son (London) Ltd. v. Paramount Film Service Ltd. , where the refrain only of "Colonel Bogey" was appropriated. True that the bulk of the coupon documents consists of lists of matches and of odds offered in which (as calculations) no copyright is claimed but the essential feature of the coupons, indeed of all the football coupons in evidence, is the selection of a limited number of matches from the whole number and the selection of a number of bets. These bets require nice calculation and great skill in order to ensure that the bookmaker will win vis-...-vis the punters as a whole while at the same time the odds offered will not be so unattractive to the individual punter that he will not fill in the coupon in the hope of winning.

An analysis of the bets offered in which the plaintiffs' and defendants' lists are checked with those of other bookmakers demonstrates that, as Lloyd-Jacobs J. put it, there are a number of features of correspondence which are too indicative of copying to be overlooked.

The selection of and the arrangements of these lists of bets with their footnotes are, to my mind, the essential feature of the plaintiffs' coupon and Mr. William Hill scarcely put it too high when he claimed in his evidence that the defendants had in 1960, the first year when they came in the fixed odds business, taken the plaintiffs' coupon, put their name upon it, and put a point on here and a point on there.

The defendants are not, in my opinion, able to escape by saying that all that they have done is to give banal commonplace descriptions to matter which is common to all engaged in the business and that, even if they have copied, they have copied nothing of any significance. I think it is not inappropriate in this connection to quote the words of Peterson J. in the case from which I have cited when he said "there remains the rough practical test that what is worth copying is prima facie worth protecting." I have no doubt that the defendants have taken a substantial part of the plaintiffs' copyright.

I would dismiss the appeal.