By Sebina Noreen Malik
The High Court has held that various actions in relation to horse racing, and to the collection and distribution of data do not constitute an infringement of copyright or database rights.
There are two types of horse racing data involved in this case and a few of the key points include:-
- Betting Shows:
- This is a single representative price for each horse in a race and when transmitted to off-course bookmakers, it is known as a Betting Show. It calculates a form of average price and involves an exercise of skill and judgment.
- It is vital information for off-course bookmakers because it enables them to offer odds to their customers that reflect the prices bring offered by the on-course bookmakers.
- As the start-time of the race approaches Betting Shows offer the best indication as to the likely Starting Price for each horse in the race.
- A high number of bets are placed on terms indicated by the Starting Price.
- Raceday Data:
- This is information specific to the race, such as the weather conditions, changes in jockeys and the start time.
- There is commercial value in collating Raceday Data and distributing this in real time to off-course bookmakers as it enables them to take bets up to the start-time of the race, but not beyond.
- The value of this information is short lived and lasts for a matter of 8 to 10 minutes before the start of the race.
Following settlement before trial with five of the defendants, the sole remaining defendant is Sports Information Service (SIS), who until 31 December 2016 had a right to collect and distribute Raceday Data to off-course bookmakers under the terms of the SIS – Arena Racing Company (‘Arena’) Agreement. The claimants alleged that the defendant continued to collect data following the end of the Agreement between the parties to check its own prices.
From 1 January 2017, SIS had no contractual arrangement with Arena, but continued to provide data of both Betting Shows and Raceday Data to off-course bookmakers. SIS collected Raceday Data through an agreement with the Tote.
The High Court (Zacaroli J) held that the supply of Betting and Raceday information in horse racing obtained from the Tote to off-course bookmakers was not liable for copyright, database rights or conspiracy to injure by unlawful means.
The claim for conspiracy failed on the basis that SIS did not have requisite knowledge of the unlawful circumstances or means by which the Tote had acquired the information.
The Court considered the position when parties consult another’s data, or the output of the formulas and this was unlikely to be protected by copyright in the Betting Shows. Further, whilst the list of names to be included in the Betting Shows may be protected by copyright, the output of the Betting Shows was not protected, and as such, there was no copyright or database rights infringement.
The Court held that there was a breach of confidence as the ability to collect and distribute the Raceday Data was limited by Arena and that there was an unauthorised use of the information. The Court was satisfied that whilst SIS did take precautions, SIS should have known the confidentiality attached to this information.
The decision illustrates the challenges in copyright in sports data.
(Racing Partnership Ltd and others v Done Brothers (Cash Betting) Ltd and others  EWHC 1156 (Ch) (8 May 2019).)