Breach of confidence, copyright and database rights: live sports data

Summary

The High Court has held that copyright and database rights did not subsist in live sports data, but breach of confidence was available to protect this data, and that there was no liability for conspiracy to injure by unlawful means.

Background

Copyright does not subsist in information derived from pure routine work which does not involve sufficient skill, labour or judgment (Bookmakers Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723).

The maker of a database has the right to prevent extraction or re-utilisation of the whole, or a substantial part, of the contents of a database (the database right). The repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of the database, which conflict with a normal exploitation of that database, or unreasonably prejudice the legitimate interests of the maker of the database, are also not permitted (regulation 16, Copyright and Rights in Databases Regulations 1997 (SI 1997/3032)).

To be protected by the law of confidential information, information must be confidential in nature, that is, not in the public domain. It must be disclosed in circumstances importing an obligation of confidence, and there must have been a breach of that confidence by the person receiving the information, to the detriment of the person imparting it (Coco v A N Clark (Engineers) Ltd [1968] FSR 415).

In Douglas v Hello!, the House of Lords held that information about a celebrity wedding was capable of being protected where a third party had paid for exclusive rights over photographs taken at the wedding (www.practicallaw.com/6-364-4967). Particular emphasis was placed on the commercial value of the information. The length of time before the information would likely enter the public domain was of secondary importance to the fact that the celebrity couple had sufficient control to enable them to impose an obligation of confidence over commercially valuable information.

A claim of conspiracy by unlawful means involves an agreement to take action that was unlawful with the intention of causing damage to a person who suffered damage as a result. Where the unlawful means consisted of breach of confidence, this depends on knowledge (or blind-eye knowledge) that rights of confidence were infringed.

Betting shows are the representative fixed odds for each horse in a race created by combining the odds offered by on-course bookmakers.

Facts

R provided live betting and horseracing data (raceday data), and betting shows, to off-course bookmakers. R had arrangements with on-course bookmakers, including T.

R argued that S had conspired with the bookmakers and T to injure R by unlawful means consisting of infringement of copyright and database rights, breach of contract and breach of confidence. R also brought a direct claim for breach of confidence by T, and by S, arising out of T's collection and distribution to S of the raceday data and direct claims for infringement of copyright and database right by S in relation to the manner in which it created its betting shows.

Decision

The court held that R had failed to establish copyright in the betting shows. The process of arriving at the information comprised in the betting shows was pure routine work that did not involve sufficient skill, labour or judgment to justify the existence of copyright. If copyright had existed, there would have been no infringement because S had not precisely copied the betting shows but had merely moved its own prices closer to them.

R also failed to establish infringement of database rights. Each betting show was a new price that was separate and distinct from the database entries. There was no conduct amounting to an extraction or re-utilisation of any part of R's database. S had merely consulted the betting shows, which did not amount to extraction or re-utilisation even if the betting shows formed part of the database. There was also no systematic extraction or re-utilisation of insubstantial parts of the contents of the database. S's conduct did not lead to the reconstitution of the database as a whole, or a substantial part of it.

The claim of breach of contract also failed as there was no contractual restriction on T feeding raceday data to S.

R's claim for breach of confidence in relation to the raceday data was against both T and S, T being the original acquirer of the information and S being the third-party recipient; a claim for breach of confidence could be established directly against S if it knew, or ought to have known, of the confidentiality of that information.

The raceday data had the necessary quality of confidence not because it was inherently confidential in nature but because it had substantial commercial value if only for a short time before the start of the race sufficient for R to enjoy its exclusive rights of publication. Its commercial confidentiality arose from T's unique position of being able to collect raceday data and disseminate it for pool betting purposes only, and not for fixed-odds betting purposes, without being subject to contractual restrictions.

Whether the raceday data was imparted to T in circumstances that would impart an obligation of confidence depended on the purpose for which T collected the raceday data. T's purpose in collecting the information was for pool betting activities only. A reasonable person in T's position would have known of the steps taken by R to preserve confidentiality in the data and to grant an exclusive right to exploit it for fixed-odds betting purposes. T would therefore have appreciated that its entitlement to collect and distribute the data was limited to the purpose of pool betting.

A reasonable person in the position of S would have appreciated that T had acquired the raceday information in circumstances that imposed a duty of confidence; S would have known that T's sole purpose of collecting the raceday information was for pool betting purposes so that use of the information for any other purpose amounted to a breach of confidence. This was despite the fact that S had sought and obtained contractual reassurances from T that it was in a position to provide the raceday data.

There had been unauthorised use of the raceday data to R's detriment. S's action in supplying a rival unauthorised data feed to bookmakers interfered with R's exclusive right causing it detriment and S was liable to R for breach of confidence in the data supplied to it by T. So, the direct claim against S succeeded.
Although a reasonable person in S's position would have appreciated that T acquired the information in circumstances of confidence that precluded its use for fixed-odds betting, it neither actually knew that, nor turned a blind eye to whether, T was unable lawfully to provide it with raceday data. S did not have the requisite knowledge of unlawfulness consisting of breach of confidence for the purposes of the claim in conspiracy.

Comment

Organisers of sporting events and the official distributors of live data from those events have historically had to rely largely on a combination of database rights and the contractual enforcement of ticket terms against data scouts to protect the value of their rights. Here, for the first time, the court applied the principles of breach of confidence established in Douglas to sports events, giving event organisers a new tool to protect the value of their official rights against distributors of unofficial data. The principles in Douglas were also extended here to apply in the context of constantly changing data which is updated on a regular basis.

The decision illustrates the difficulties in establishing subsistence and infringement of copyright and database rights in live sports data. Notably, the court distinguished between consulting data and extracting and utilising it for a separate purpose or gain. The law of confidence potentially provides greater protection against dissemination of unofficial data.

Case: Racing Partnership Ltd and others v Done Brothers (Cash Betting) Ltd and others [2019] EWHC 1156 (Ch).