Exploitation of live sport data goes into extra timeKevin Carpenter
Football DataCo has been involved in many sporting intellectual property law disputes in recent years. In this article LawInSport's Kevin Carpenter analyses the latest in a string of cases affecting data provided by companies for sports betting purposes which has implications for both the UK and Europe.
Anybody with even a passing interest in intellectual property (‘IP’) law, sports law or gambling law cannot have failed but to have heard about the Football DataCo series of cases. Football DataCo’s principal purpose is to act on behalf of the four English and Scottish professional football bodies to protect, market and commercialise their official match related data. Their litigation against Sportradar and Stan James (‘the Defendants’), who both operate in the sports gambling sector, has been ongoing in various guises and in various UK and European courts since 2010. This series of cases have explored and settled some important IP issues relating to sport, particularly regarding the protection of databases. The latest ruling came from the UK Court of Appeal on 6 February 2013 with Sir (Lord Justice (‘LJ’)) Robin Jacob giving judgment for the Court. 1
The dispute between the parties centered upon ‘live’ match data collected by DataCo, namely data updated while professional football matches are being played. This data includes both objective (i.e. goals scored, number of corners etc.) and subjective data (i.e. man of the match, severity of a foul etc.) collected by football analysts employed by DataCo to attend the matches. This is then fed by telephone to a sports information processor who inputs it into a database maintained by PA Sport UK (subcontracted to perform this function by DataCo).
Sportradar (based in Switzerland) maintains a very large database of sports statistics under the Betradar brand. These statistics include so-called ‘Live Scores’ data containing matches under the remit of DataCo. However, unlike other organisations who utilise the live data from DataCo, Sportradar did not have a licence to use it. Yet they still sold their services to online betting companies including Stan James.
Stan James uses this data from Sportradar through a link on their website, which if clicked on by a user creates a pop-up window on the user’s screen. The user’s web browser then communicates with the ‘Live Scores’ section of Betradar and all the ‘Live Scores’ data is downloaded to the user’s computer. Each match then has a magnifying glass icon next to it which if clicked upon by the user provides them with detailed statistics of that particular match.
An abbreviated history of the previous cases
DataCo served a claim against both Sportradar and Stan James for the alleged infringement of the copyright and/or sui generis database right (a unique IP right in EU law) DataCo believed it owned in the ‘live data’ by the Defendants UK-based customers. At the time of filing its defence, Sportradar had narrowed the scope of the information it included on its Betradar database from pre-defence to post-defence data:
- Pre-defence data – a wide range of data such as own goals, penalties, scorers, cards, substitutions for all tiers of English and Scottish football matches; and
- Post-defence data – limited to supplying data on goals for non-televised matches.
Two lines of cases emerged from the above facts:
- the substance of the alleged infringement by Sportradar and Stan James; and
- where the alleged act of re-utilisation or extraction took place for the purpose of jurisdiction.
The second was settled by a ruling of the Court of Justice of the European Union (‘CJEU’) in October 2012, following a reference from the UK Court of Appeal. It stated that liability for database right infringement where a party is overseas still rests with that party when there is an intention to target members of the public in the country where the case is being brought, in this instance the UK public. This opened the possibility that Sportradar could be held liable as a primary infringer.
It was then left to Jacob LJ to decide upon what it described as the “commercially significant questions”: whether a sui generis database right subsists in the ‘live data’ and whether there had been both pre-defence and post-defence infringement by the defendants’?
Court of Appeal kicks the Defendants out of the park
The first issue for LJ Jacob was whether DataCo’s data qualified as a ‘Database’ under the Database Directive?2 In answering this Jacob LJ referred to passages from the famous Fixtures Marketing case3, concluding DataCo’s data was “indisputably” a Database within the meaning of the Directive.
Following on was whether the database qualified for protection under Article 7 of the Directive, the principal provision of which reads as follows, “Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”4 The judge rejected two arguments put forward by the Defendants as “illogical”.
One of which was that the recording of the football information by DataCo was not in fact an act of ‘obtaining or verifying’ rather it was an act of creation, to which Jacob LJ replied, “Only a metaphysicist would say a goal is not scored until the [analyst] tells the [processor] it has been scored.” The second creative, yet ultimately flawed, submission by counsel for the Defendants was that the collection of both objective and subjective data by DataCo meant that there was no independent investment in the objective data alone and therefore no sui generis right. Jacob LJ was clear that it simply could not be true that database protection was lost just because objective data was mixed with subjective data. Overall the “significant investment” (around £600,000 per year) by DataCo into its database justified protection under Article 7.
Having confirmed the existence and protection of DataCo’s data as a Database it was time to address the issue of infringement. DataCo was of the belief that the UK based customers/users of the Stan James website had infringed their Article 7 rights. The Defendants argued that data is only ‘extracted’ by the user when it is read by them, not by the mere fact of transfer. Therefore as each user would not view all the matches, and thereby all the data, the Defendants believed they had not infringed. Jacob LJ gave this short shrift.
To be an infringement, the users (and by implication Sportradar) had to have extracted and/or re-utilised a ‘substantial part’ of DataCo’s data. This standard was reached by the Defendants as it had been shown that Sportradar had copied a substantial amount of DataCo’s data for professional football matches in England and Scotland below the top divisions. Jacob LJ however then went one step further examining the situation pre-defence and post-defence because the trial judge at first instance had drawn a distinction by only finding copying of a substantial part (i.e. an infringement) in relation to the pre-defence data. Jacob LJ, in overruling the trial judge on this point, said the test to be applied was the level of the investment in obtaining, verifying or presenting the data extracted. Therefore even with the post-defence data you would need to invest in reliable people at every ground and a reliable method of reporting data concerning the goals scored.
In English law joint-tortfeasorship is where the Defendants to an infringement are found to be jointly liable. LJ Jacob had to firstly decide whether Stan James was a joint-tortfeasor with its customers and put the question as follows, “if A has a website containing infringing material which will inevitably be copied into the computer of B if he enters that website, is A a joint-tortfeasor with B?” He quickly came to the conclusion that the answer had to be yes as Stan James was causing each and every one of its UK users who accessed the site to infringe. In reality each time a user clicked on the pop-up box they infringed without knowing it. Therefore Stan James could not be considered to be a mere facilitator.
The Defendants then tried to raise a defence of innocence, but as this defence was not available to the users themselves then LJ Jacob did not see why Stan James should benefit from it. Ultimately this was a case of primary rather than secondary infringement. It was also without question that Stan James was also a joint-tortfeasor with Sportradar, given the latter had been ruled as potentially being primary infringers by the CJEU. Interestingly it was added that this analysis would apply equally to issues of copyright as to database right.
Two strained defences raised by the Defendants as a last resort, one based on the ‘abuse de droit’ principle in EU law (that EU law must be interpreted and applied so as to avoid conferring legitimacy on abusive behaviour) and the other rooted in human rights law (Article 10 of the European Convention on Human Rights (freedom of expression)), were described as “hopeless” by Jacob LJ.
Is this the final whistle?
For those suffering with appeal fatigue it is unlikely that this will be the end of the matter between the parties. The joint-tortfeasor reasoning is the most significant part of the judgment for online sports gambling companies, and the field of IP more widely, as it means the popular ‘intermediaries defence’ for website and internet service providers does not apply as at least constructive knowledge of the infringement will attributed to them. It places a heavy investigative burden on these organisations to check not only the origin of the data on their site but also any material which may be protected by third party copyright. Undoubtedly the Defendants will appeal this to the UK Supreme Court so get your tickets now!
A link to the full text of the judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2013/27.html
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About the Author
Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.