Data - it's back and this time it's serious

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

In the early years of this millennium, sports governing bodies, led by horseracing and football, saw data as a means of establishing a new revenue stream - in particular, from bookmakers and other gambling operators. They were encouraged to do this by the 1996 EU Database Directive which came into force on 1 January 1998 and established a new intellectual property right in databases.

British horseracing in the form of its then governing body, the British Horseracing Board ("BHB") lobbied for the Government to abolish the horserace betting levy, (which had been in place since the early 1960s as a statutory funding mechanism for British racing) with the intention that it would be replaced by a licence of database rights in the "runners and riders" racecard information (also known as "pre-race data"). The Government indeed passed legislation1 giving the Government the power to repeal the levy and, after a fractious period of negotiation (including litigation brought by the BHB against William Hill), a commercial agreement was reached between the BHB and the major bookmakers. However, the case that had been commenced against William Hill was referred by the Court of Appeal to the European Court of Justice (now the Court of Justice of the European Union, the "CJEU") which decided in November 20042 that the BHB had no database rights in its pre-race data. Also joined with the BHB vs William Hill case were similar cases brought effectively by the English and Scottish professional football leagues against gambling operators in Finland, Sweden and Greece3 so that the CJEU's decision also ruled that the football leagues had no database rights in their fixture list.

Notwithstanding the CJEU's ruling that it held no database rights in its pre-race data, the BHB which supplied horseracing television channel Attheraces with a data feed through the Press Association, insisted that Attheraces should nevertheless continue to pay the same fee (which had included a licence fee in respect of BHB's intellectual property rights). That prompted further litigation4 in which Attheraces brought a claim to the effect that BHB was abusing its dominant position through excessive pricing. Attheraces was successful in the High Court but the High Court's decision was overturned on appeal and the dispute was then settled.

In the meantime, the Government decided to retain the levy and, since then, there have been almost continuous debates about whether the levy should be retained, modified or replaced with some other mechanism (see here for our note on the latest consultation).

Following the various litigation in 2004/5, racing seemed to have accepted that it had no intellectual property rights in its data and have supplied a pre-race data feed through Racing Enterprises Limited ("REL"). However, as explained below, the data card has now been put back in play and has led to a new round of litigation but, before turning to that, let's look at football's response to the CJEU decision.

Football, through Football DataCo5, did not take the CJEU's decision lying down and brought proceedings against Yahoo! and certain bookmakers claiming again that there was, notwithstanding the CJEU's judgment, a database right in their fixture list and, in any event, that there was a separate copyright in the fixture database. That case was again referred to the CJEU who in November 2012 (see here for our note on the decision) ruled that the football leagues had neither database rights nor copyright in their fixture lists. Undaunted by these reverses, Football DataCo had also instigated separate proceedings against online bookmaker, Stan James, claiming that it had a database right in so-called "live data", i.e. the kind of information (goals scored, yellow cards,goal scorer, time of goal, substitutions) used by bookmakers for in-play betting on football matches. That case also ended up going to the Court of Appeal6 where the defendants also sought a reference to the CJEU but this time the Court of Appeal refused. This left Football DataCo with a successful ruling in its favour that database right subsists in Football Dataco's Football Live database.

We understand that Football DataCo is now trying to commercialise these live data rights and has held meetings with the Remote Gambling Association and individual operators with a view to negotiating licence fees payable by each operator to use live data. There are, however, certain practical and legal limitations on how much Football DataCo can charge. First, there are legitimate ways in which bookmakers can obtain some of this data without using Football DataCo's intellectual property rights, for example where data is obtained by bookmakers directly through the monitoring of live pictures. Whilst it is undoubtedly easier for bookmakers to obtain a data feed from Perform, Football DataCo's authorised distributor, at a certain price point, the bookmaker will be incentivised to make alternative arrangements. Second, any bookmaker (or the RGA as a representative body) could always refer Football DataCo to the Copyright Tribunal, a body whose purpose is to determine the appropriate fee payable by users of collectively licensed intellectual property rights. There is also a potential competition issue in relation to the way the arrangements are structured as between Football DataCo and Perform. Lastly, the law has not been tested on the issue of whether a bookmaker who pre-populates potential outcomes will be infringing live data rights at the point at which the relevant outcome is determined.

This brings us back to horseracing where, in February of this year, almost all British racecourses formed a new venture called Racecourse Data Company (RDC) to supply to bookmakers and other users the pre-race data which had previously been supplied by REL. RDC has published a ratecard (see here) for the use of its data. Given the CJEU's decision in the BHB case in 2004 as confirmed by the CJEU's decision in the Football DataCo case in 2012, there can be little doubt that RDC has no intellectual property rights in this data so that RDC is instead offering the supply of an authorised data feed. RDC has appointed SIS and PA as its distributors and we understand that most bookmakers have signed up to the new ratecard terms. However, there is one company which does not agree with the new ratecard which is the specialist horseracing newspaper, the Racing Post. We understand that the ratecard represents a very significant increase in the fee the Racing Post has to pay to receive exactly the same data as it was previously receiving from REL (the increase in the fee now standsbeing in excess of £500,000 per annum) and that this has led to yet another dispute under which the Racing Post has referred RDC to the Copyright Tribunal7 as well as commencing action in the Intellectual Property and Enterprise Court ("IPEC") for a declaration that RDC has no intellectual property rights in pre-race data. We understand from the Racing Post that RDC state that they have not asserted that they own any intellectual property rights in the pre-race data and that accordingly there is no basis for the Copyright Tribunal to have jurisdiction. In the meantime, as is clear from this press release, RDC have turned off the Racing Post's data feed. As explained in relation to the Football DataCo live data situation above, the Racing Post appears to be obtaining its pre-race data from alternative sources. Although this will no doubt be logistically and administratively inconvenient, it is clearly preferable for the Racing Post to do this rather than to pay significantly increased fees. So how will this play out?

It seems to us that there are various routes that this may take:

• RDC may be successful in shutting down all alternative sources of data so that the Racing Post is forced to accept RDC's ratecard if it wants to continue in business;
• RDC may seek to go down the Football DataCo "live data" route and assert intellectual property rights in the horseracing equivalent of "race day data" (for example, going changes, non-runners, overweights, jockey changes, etc.) which, in turn could potentially lead to another Copyright Tribunal reference;
• The Racing Post could replay the Attheraces vs BHB case and claim that RDC is abusing a dominant position through excessive pricing.

The other question which some will ask is whether it really makes sense for racing to antagonise and potentially threaten the business model of its only dedicated newspaper particularly when the national press coverage of horseracing continues to decrease.

1 Horseracing Betting and Olympic Lottery Act 2004

2 Reference C-203/02

3 C-46/02, C-338/02. C-444/02 Fixtures Marketing

4 [2007] EWCA V iv 38

5 Football DataCo controls and administers the data rights on behalf of the Premier League, the Football League and the Scottish Professional Football League

6 [2013] EWCA Civ 27

7 Copyright Tribunal Ref 126/14