In part 1 of 'whose data is it anyway', we considered the position of Football DataCo and Betgenius, with particular reference to the experience of a Hull City fan who was questioned in relation to "unauthorised data gathering" during a match against Reading. In this, the final part of our two-part series, Sport Shorts considers whether anyone actually owns the data gathered at football matches and if Football DataCo is entitled to prevent people from collecting such data.
Does Football DataCo own the data gathered at football matches?
On its website, Football DataCo states that it represents the data rights of the English and Scottish professional football leagues. What are these data rights? Well, organisations like Football DataCo have to rely on two intellectual property rights to protect their data – copyright and database right. Both these rights require information to be held in a database and protect the database itself rather than the data created by the maker of the database.
Under English law, there is no property right in information or data per se. Owning the copyright or database right in a database does not entitle the rights holder to prevent third parties from creating their own databases using data they gather independently at football matches. In simple terms, you cannot 'own' the fact that a player scored a goal or was sent off. So, as a matter of law, Football DataCo cannot have a monopoly over the factual data arising from events at a football match.
Can Football DataCo stop people gathering data at matches?
If Football DataCo cannot have a monopoly over the record of events at a football match, do they have the right to prevent people from gathering such data in stadia? The answer to this question lies, in part, in the terms and conditions for match tickets. Returning to the example of Mr Mawer, the Hull City fan who faced allegations of "unauthorised data gathering" at a match against Reading, Hull City's terms and conditions state variously that:
- "the Cardholder is not permitted to bring into (or use within) the Stadium any equipment which is capable of recording or transmitting (by digital or other means) any audio, visual or audio-visual material or any information or data in relation to any match or any aspect of it, unless they possess and exhibit the necessary Press Accreditation Pass at all times during the relevant match."
- "Mobile telephones are permitted within the Stadium, provided that they are used for personal and private use only."
- "no Match Card may, without the Club's prior written consent, be [...] used for any other commercial purpose."
- "Misuse of any Match Card may result in the Cardholder named on the Match Card being refused entry to, and/or ejected from, the Stadium in respect of any particular match(es) and/or the cancellation and withdrawal of their Match Card."
It would appear that Football DataCo's contractor (acting in conjunction with a Hull steward) was relying on these provisions when advising Mr Mawer that he may be ejected from the stadium. The assumption made by the contractor was that Mr Mawer was transmitting information for a commercial purpose. However, Mr Mawer alleges that he was told he was not allowed to text match-related information to his friends and family. This is indicative of a wider sense of ownership over football data on the part of Football DataCo and Betgenius.
It seems, from Mr Mawer's account of events, that Football DataCo has indirectly used, or at least attempted to use, clubs' ticketing terms and conditions as a vehicle for restricting data gathering at football matches to ensure the exclusivity of Betgenius' licence. Aside from the allowances made for journalists, the strict enforcement of these terms and conditions could give Football DataCo's licensee, Betgenius, something akin to a monopoly over the record of factual events that occur at matches. This begs the question, is it anti-competitive for one company to be the only party allowed to gather real-time data at matches for the betting and gaming markets? It will be interesting to see if this question comes before the courts in the future.
We return then to the central question of this two-part series, who owns football data? The answer is, by turns, straightforward and complicated. No one owns the record of factual events that occur at football matches, yet companies that compile that data in the form of a database are able to protect such databases from being copied or utilised by a third party without consent. That doesn't entitle the database owner to prevent any other party from independently compiling their own database based on the same events. However, contractual restrictions, while potentially problematic, can be used to prevent third parties from carrying out such data-gathering activities. We will watch with interest to see if the policing operations of Football DataCo and Betgenius receive further scrutiny during the course of this season.
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