UK: ECJ Limits Scope of Database Protection: Betting Organisations can use Sport Listings

Last Updated: 23 November 2004
Article by Sara Elwyn Jones

On 9 November the European Court of Justice (‘ECJ’) delivered its long awaited judgments in The British Horseracing Board and Others v William Hill Organization Ltd (Case C-203/02), Fixtures Marketing Ltd v Oy Veikkaus AB (Case C-46/02), Fixtures Marketing Ltd v Organismos Prognostikon Agonon Podosfairou AE (Case C-444/02) and Fixtures Marketing Ltd v Svenska Spel AB (Case C-338/02).

All four cases concerned the European Directive on the Legal Protection of Databases 96/9/EC (the ‘Directive’), and specifically, the extent to which sporting databases are protected under it.

Facts

The British Horseracing Board (‘BHB’) v William Hill Organization Ltd (‘William Hill’)

BHB, the governing authority for the British horse racing industry, maintains a database recording information on fixtures, horses, trainers, owners and jockeys, which bookmakers and newspapers pay a fee to access. The cost of maintaining and updating the database is in the region of £4 million per annum. The fees charged by BHB for the use of the information cover about a quarter of that cost.

On the day before a race, subscriber bookmakers receive a compilation of information from BHB without which bets could not be placed. William Hill is one of the leading providers of odds in horseracing, and in addition to traditional sales methods, it offers internet betting for all the major horse races in the UK. The information displayed on its websites comes, initially, from newspapers published the day before the race and, secondly, from an information service for subscribers which in turn obtains its information from BHB's database.

The information on the William Hill websites only covers a small part of the whole of the BHB database and is not arranged on the websites in the same way as it appears in the BHB database.

Fixtures Marketing Ltd v Various

Fixtures Marketing grants licences for the exploitation outside the UK of the fixture lists for the English Premier League and the Scottish Football League. Its distribution of licences is carried out on behalf of the organisers of the league games.

Fixture lists have to be drawn up for the matches to be played in the various divisions during the season (about 2,000 matches per season in England and 700 matches per season in Scotland). The data are stored electronically and published in printed booklets (and other places), both chronologically and by reference to each team participating.

According to Fixtures Marketing, the annual cost of developing and administering the fixture lists in England is about £11.5 million and annual licensing revenues in respect of the data in the English database amount to about £7 million (about 60 per cent of the cost).

  • Oy Veikkaus AB (‘Veikkaus’)

Veikkaus, which has the exclusive right to organise gambling activities in Finland, uses data relating to games in the Premier League and the Scottish Football League for its betting activities. For the reference period 1998/1999 it used all Premier League and Division One matches during the football season. Veikkaus did not hold a licence to do so from Fixtures Marketing.

Around 200 matches are used each week for the purposes of betting. In order to organise its betting activities, Veikkaus collects data regarding matches from the internet, newspapers or directly from the football clubs, and checks its correctness. Its annual turnover from betting on league football matches in England amounts to ‘several tens of millions of euros.’

  • Svenska Spel AB (‘Svenska Spel’)

In Sweden Svenska Spel operates pools games in which bets can be placed on the results of football matches in the English and Scottish football leagues (amongst others). It reproduces data concerning those matches on pools coupons.

According to Svenska Spel, it had no knowledge of the databases maintained by Fixtures Marketing, and the data on the pools coupons came from British and Swedish daily newspapers, teletext, the football teams in question, an information service and from a publication called Football Annual.

According to Fixtures Marketing, the profit made by Svenska Spel in the games offered by it (Oddset, Måltipset and Stryktipset), for which it uses between 21 and 90 per cent of the total number of matches in the fixture lists of the English football leagues, amounts to approximately €66 to €77 million per year in the three games.

  • Organismos Prognostikon Agonon Pododfairou AE (‘OPAP’)

OPAP has a monopoly on the organisation of gambling in Greece. Fixtures Marketing claimed that OPAP 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 distributed and made available to the public in Greece.

Not one of the three organisations has ever been granted a licence by Fixtures Marketing.

The References

BHB and Fixtures Marketing brought proceedings alleging that the companies using their data had infringed their so-called sui generis right under the Directive. Sui generis literally means ‘of its own kind’ i.e. separate from other intellectual property rights, namely copyright.

The Finnish Vantaan Käräjäoikeus, the Swedish Högsta Domstolen, the Court of Appeal of England and Wales, and the Greek Monomeles Protodikeio Athinon, before which all four cases are pending, referred several questions to the ECJ on the scope and effect of this sui generis right provided for under the Directive. It has proven difficult to interpret the precise extent of the protection of the European database right because of the lack of definitions provided by the Directive. Consequently the outcome of the four references had been eagerly awaited.

The Advocate General’s Opinion

The Advocate-General’s Opinion in all four cases was warmly welcomed by database owners because it supported a broad interpretation of the protection given to databases under the Directive.

The Advocate General seemed to endorse perpetual protection to databases, and maintained relatively low entry requirements. The Opinion clarified what constituted a qualifying database and gave a wide interpretation to the infringement provisions.

The Judgment of the ECJ

However, on 9 November, BHB and Fixtures Marketing, somewhat surprisingly, lost their bid to stop betting firms from using their sports schedules.

In its judgments, the ECJ acknowledged that Article 7(1) of the Directive reserves the protection of the sui generis right to databases which meet a specific criterion, namely to those which show that there has been qualitatively and/or quantitatively a substantial investment in the obtaining, verification or presentation of their contents.

Football Fixtures

However, the Court raised doubts over whether a football fixture list could be defined as a database because professional leagues do not have to make a major investment to compile the information.

The Court held that ‘investment in … the obtaining … of the contents’ of a database must refer to the resources used to seek out existing independent materials and collect them in the database, as opposed to the resources used for the creation as such of independent material which makes up the contents of a database.

As Fixtures Marketing had itself pointed out, the process of finding and collecting the data which make up football fixture listings, is indivisibly linked to the creation of the data, in which the leagues participate directly as those responsible for the organisation of football league fixtures. Obtaining the contents of a football fixture list (the ‘database’) thus does not require any investment independent of that required for the creation of the data contained in that list. The verification of the accuracy of the contents of fixture lists during the season simply involves adapting data in those lists to take account of any postponement of a match or fixture date decided on, by, or in collaboration with the leagues. Such verification cannot be regarded as requiring substantial investment.

Consequently, neither the obtaining, verification nor presentation of the contents of a football fixture demonstrates substantial investment which could justify protection under the sui generis right provided for by the Directive.

Horseracing

On the other hand, there was no dispute that the BHB database did amount to a protected database under the rules, said the judges. But authorisation to use the data would only be required if William Hill was using ‘the whole or a substantial part’ of the contents of the database.

The Court held that ‘acts of extraction’ (transferring the contents of a database to another medium) and ‘acts of re-utilisation’ (making available to the public), of the whole or a substantial part of the contents of a database require permission from the creator of the database. The expression ‘substantial part’, in quantitative terms, of the contents of a database, refers to the volume of data extracted from the database and/or re-utilised, and must be assessed in relation to the total volume of the contents of the database. In qualitative terms it refers to the scale of the investment in the obtaining, verification and presentation of the contents extracted or re-utilised.

The Court observed that the resources used by BHB, in the course of organising races, to decide the date, the time, the place and or name of the race and the horses running in it, represented investment in the creation of the materials contained in its database. It added that the verification prior to the entry of a horse on a list takes place at the stage of the creation of the data and could not, therefore, be considered to constitute investment in the verification of the contents of the database. Since the materials extracted and re-utilised by William Hill did not require investment by BHB which was independent of the resources required for their creation, those materials did not constitute a substantial part of the contents of the BHB database.

Consequently, the Court held that William Hill had only used insubstantial parts of BHB’s data and the collection of fixtures did not therefore seriously prejudice the investment made by BHB in the creation of its database. It also decided that William Hill had arranged the data in a different way.

Conclusion

The ECJ has construed the Directive narrowly, and by doing so, has restricted quite substantially those works that are protected as databases under the Directive.

It is now clear that in order to be eligible for protection under the Directive a database owner must prove that ‘substantial investment’ was made in the relevant information and in order to fall foul of the Directive the information taken by an alleged infringer must form a ‘substantial part’ of the database, both quantitatively and qualitatively.

The ruling throws doubt on future data licensing income from the licensing of rights in sports fixtures and it is likely that millions of pounds of annual revenues could be lost to the Premier League, the Football League and the BHB. It may however still be possible to seek protection through copyright legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.