Out-Law News 6 min. read
11 Jun 2004, 12:00 am
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.
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.
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.
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.
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.
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.
The Court of Justice is now awaited. There has been no indication as to when its final judgment can be expected.