Are England and Australia Heading in Different Directions Regarding Copyright in Sporting Fixtures - Implications for Wagering Operators?
By Jamie Nettleton, Partner
30 July 2010
Football Dataco v Stan James - Case Note [1]
On 23 April 2010, the English High Court at first instance handed down its decision in Football Dataco Limited & Ors v Stan James Plc & Ors [2010] EWHC 841 (Ch) (Stan James).
Mr Justice Floyd considered three issues in relation to use of lists of fixtures in the English and Scottish Premier Leagues (Fixture Lists) by Stan James and other bookmakers:
- are the Fixture Lists protected by copyright as a database?
- are the Fixture Lists protected by the database right? and
- are the Fixture Lists otherwise protected by copyright?
The English High Court determined that the Fixture Lists are protected by copyright as databases. Although not required to do so, his Honour found that the Fixture Lists were not protected by the database right and would not have otherwise been protected by copyright except as a database. (It should be noted that, in Australia, there is no equivalent to the sui generis database right that exists in England and the rest of Europe.)
In finding that the Fixture Lists were protected, the Court considered that the amount of "skill and judgment" required to produce the Fixture Lists was crucial. In setting out his reasoning, Floyd J paid considerable attention to the "value judgments" that were made by the authors of the Fixture Lists and drew a distinction between compilations that were mechanical in their production (such as a collection of all acts of Parliament since 1900) and those that involved discretion (an author's favourite 1,000 poems).
With respect to the underlying law, Australian copyright is no different. However, the recent decisions of the High Court of Australia in Nine Network Pty Limited v IceTV Pty Limited [2009] HCA 14 (IceTV) and the Federal Court in Telstra Corporation Limited & Anor v Phone Directories Company Pty Ltd & Ors [2010] FCA 44 (Phone Directories) have also clarified that databases will need to meet the requirements of originality in order for copyright to subsist and that, while the amount of skill and effort that has been expended may be relevant to determining originality, it is originality which is the key determinant, not skill and effort.
What does this mean for any future Australian claims of copyright in race fields and sporting fixtures? The decisions in IceTV and Phone Directories indicate that owners of sporting fixture information in Australia claiming copyright infringement for the use of race field information by online bookmakers and betting exchanges will need to demonstrate that:
- a clearly identifiable author of the work exists;
- the compilation is sufficiently original; and
- any alleged infringed copies were not developed independently.
The Australian decisions suggest that this will be a very high bar to clear. In both IceTV and Phone Directories, the Australian courts appear to be suggesting that the pendulum of copyright protection has swung too far in one direction and that a more critical focus will be applied to copyright claims moving forward, particularly those that relate to factual information.
Further difficulties may arise for owners of sporting fixture information if Australian courts take the view that skill and judgment expended in the development of the underlying data is not relevant for determining the skill and judgment in the compilation of the database. Were this to be the case, then, even if courts conceded that the production of the information in the database required considerable skill and judgment, this would not necessarily be of any assistance in establishing copyright in the database itself.
Although at first blush Stan James may appear to suggest that English law and Australian law are diverging on the issue of copyright, the decision demonstrates that the underlying law in both countries is largely consistent. Where there are differences is in the application of that underlying law, especially with respect to databases that consist of information which is significantly factual. The Australian cases, in particular, suggest that demonstrating originality in a database of significantly factual information, such as a race field or sporting fixture, and whether the use of that information by an unauthorised third party, such as an online wagering operator, represents infringement of copyright remain difficult arguments to make.
The assistance of Michael Camilleri, Solicitor, of Addisons in the preparation of this article is noted and greatly appreciated
[1] Published in The World Online Gambling Law Report June 2010