The battle between William Hill and the British Horseracing
Board was one of four cases upon which Advocate-General Christine
Stix-Hackl delivered an opinion to the European Court of Justice on
Tuesday. She is one of eight Advocates-General and, while their
opinions are not binding on the Court, they tend to be very
persuasive.
The other three cases concerned Fixtures Marketing Ltd, a
company which grants licences for football fixtures.
Facts of the cases
The British Horseracing Board's lawsuit
The British Horseracing Board (BHB), the governing authority for
the British horse racing industry, is responsible for the
compilation of data related to horseracing.
Its database contains racing information and the official
document of registration of thoroughbred horses – known as the Stud
Book – in the UK. It contains details of registered horses,
jockeys, fixture lists comprising race conditions, entries, runners
and more.
The annual cost of continuing to maintain the database and keep
it up to date is approximately £4 million and involves around 80
employees in addition to "extensive" software and hardware.
The racing information is made available to radio and television
broadcasters, magazines and newspapers and to members of the public
who follow horse racing on the morning of the day before the
race.
The names of all the participants in all the races in the UK are
made available to the public on the afternoon before the race
through newspapers and Ceefax/Teletext.
On the day before a race, bookmakers receive, through various
subscriber services, a specific compilation of information without
which bets could not be placed.
William Hill Organisation Ltd is one of the leading providers of
odds in horseracing. In addition to traditional sales methods –
such as licensed betting offices and telephone betting – it offers
internet betting for all the major horse races in the UK.
The information displayed on its web sites comes from newspapers
and from an information service for subscribers which in turn
obtains its information from the BHB's database. Neither the
newspapers nor the information service have any right to sublicense
William Hill to use any information derived from the BHB's database
on its web site.
The information on the William Hill web site only covers a small
part of the whole of the BHB database and is arranged in a
different way. If the customer requires any other information to
arrive at an informed view of the horse's chances of success, such
information can be found elsewhere, such as newspapers.
The Fixtures Marketing lawsuits
Fixtures Marketing Ltd grants licences for the exploitation
outside the UK of the fixture lists for the English premier league
and its Scottish equivalent. Its distribution of licences is
carried out on behalf of the organisers of the league games.
Around 2,000 matches are played each season and the fixture
lists drawn up at the start of each season by the organisers of the
leagues are stored electronically and set out in printed booklets
(and other places).
According to Fixtures Marketing, the annual costs of developing
and administering the fixture lists in England is about £11.5
million and annual licensing revenues in respect of the data about
fixture lists in the English database are only about £7
million.
Oy Veikkaus AB, a Finnish pools operator, uses data relating to
games in the Premier League and the Scottish Football League for
its betting activities. In 1998/1999 it used all Premier league
matches during the football season.
Veikkaus did not hold a licence to do so from Fixtures
Marketing. It obtains the data from the internet, newspapers or
directly from the football clubs and continuously checks their
correctness. Veikkaus' annual turnover from betting on football
matches in England amounts to several tens of millions of
Euros.
In Sweden, AB Svenska Spel operates pools games in which bets
can be placed on the results of football matches in the English and
Scottish football leagues. Svenska Spel uses matches from the
leagues on pools coupons and in a special programme.
According to Svenska Spel, the data on the pools coupons come
from British and Swedish daily newspapers, from Teletext, from the
football teams in question, from an information service and from
the publication 'Football Annual'.
Svenska Spel has no licence to exploit those data from Fixtures
Marketing. According to Fixtures Marketing, the profit made by
Svenska Spel in the games, for which it uses between 21% and 90% of
the total number of matches in the fixture lists of the English
football leagues, amounts to SEK 600 to 700 million (or €65,955,809
to €76,948,444) per year in each case.
In Greece, Fixtures filed a number of lawsuits against the
limited company Organismos Prognostikon Agonon Pododfairou AE
(OPAP).
It claims that OPAP has unlawfully and without permission
repeatedly extracted from the lists of football fixtures in England
and Scotland a substantial amount of data regarding fixtures and
transferred them to various internet sites which OPAP distributes
and makes available to the Greek public.
Argument of British Horseracing Board and Fixtures
Marketing
BHB and Fixtures Marketing consider that the companies which are
using their data for the purposes of taking bets on horseracing or
football matches have infringed their so-called sui generic right
under the Database Directive. "Sui generis" literally means "of its
own kind" – a slice of legalese for something unique.
How the cases reached Europe
The Finnish Vantaan Käräjäoikeus, the Court of Appeal of England
and Wales, the Swedish Högsta Domstolen and the Greek Monomeles
Protodikeio Athinon before which these proceedings are pending have
referred several questions to the Court of Justice on the subject
of the effect of this sui generis right under the Database
Directive.
Tuesday's Opinion
Advocate-General Stix-Hackl takes the view, first, that the term
database should be interpreted widely for the purposes of the
Database Directive. Thus, for example, lists of football fixtures
are covered.
The right provided for by the Directive allows the maker of a
database to prevent the use of the data it contains under certain
circumstances.
It is intended to protect databases or their contents without
protecting the information they contain as such. It thus indirectly
protects the investment involved in the making of the database.
Under the Directive the right to protection requires a
substantial investment in qualitative or quantitative terms to have
been involved in the making of the database.
The purpose of the database is not a criterion for the
assessment of the eligibility for protection of a database. It is
thus irrelevant whether the databases were made by Fixtures
Marketing and the British Horseracing Board solely for the purpose
of organising betting and that the database was possibly only a
by-product of the investment.
It is for the national court to assess whether there was a
substantial investment. In so doing that court would have to take
account of the matters to be taken into account in drawing up the
fixture lists.
Stix-Hackl then turns to the specific object of the investment.
Only investment in the obtaining, verification and presentation of
the contents of a database is capable of protection. The term
'obtaining' does not cover the mere generation of data.
However, where the creation of data coincides with its
collection and screening, and is inseparable from it, the
protection of the Directive kicks in. The term verification also
includes checking whether a database is up to date.
Next, Advocate General Stix-Hackl discusses which acts the maker
can prevent and which can therefore be considered to be
prohibited.
She finds, first, that the Directive is also intended to
prohibit possible breaches consisting in the rearrangement of the
contents of a database. She also takes the view that, in any event,
where half of the games a database contains are involved, there
will be extraction and/or re-utilisation of a substantial part of
the contents of a database which is prohibited generally – that is
to say, regardless of frequency or of any systematic approach. The
proportion can be assessed over a week or over the season.
Extraction and/or re-utilisation of insubstantial parts of the
contents of a database is prohibited if it is a repeated and
systematic act, that is to say, it is carried out at regular
intervals, and prevents the economic exploitation of the database
by the owner of the right on potential markets or damages his
legitimate economic interests to a degree that goes beyond a
certain threshold.
Unlike extraction, however, re-utilisation does not require that
the information be obtained from the database itself; rather, the
prohibition on reutilisation is also applicable if the data are
taken from an independent source, such as a print medium or the
internet.
Finally, the extraction and/or re-utilisation is prohibited as
regards a database to the contents of which there has been a
substantial change, evaluated qualitatively or quantitatively,
which is thus the result of a substantial new investment, evaluated
qualitatively or quantitatively.
Such a change gives rise to a new database. In the case of
dynamic databases the whole database and not only the changes as
such enjoy a new term of protection.
What's next?
The Court of Justice is now awaited. There has been no
indication as to when its final judgment can be expected.
