Legal protection of sporting databases

The judgment is one of the series of the European Court of Justice’s (the “ECJ”) judgments which buried expectations of makers of sporting databases (football, horseracing) to receive supplement funding for the sport by charging the betting companies for using the information coming from their databases. The judgments concern the nature and scope of the sui generis right for protection of databases regulated by the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (the “Directive”).

This particular case concerns the British Horseracing Board Ltd. (the “BHB”) that compiles and maintains a database which contains a large amount of information on races to be held in the United Kingdom, the data concerning, inter alia, the name, place and date of the race concerned, the distance to be run, the criteria for eligibility to enter the race, the date by which entries must be received, the entry fee payable, the final list of horses and riders for each race, etc.

William Hill, the opponent in the case, are one of the leading providers of off-course bookmaking services in the United Kingdom, offering also on-line booking on internet. On their web site, William Hill publish also the information concerning horses and riders for particular races, deriving from the BHB database.

The BHB brought an action against William Hill claiming that the latter infringed its sui generis right for protection existing on the basis of the Directive with respect to the BHB’s database. After the decision of the High Court of Justice of England and Wales, which was favourable to the BHB, the Court of Appeal, to which William Hill appealed against the initial decision, referred to the ECJ several questions concerning the interpretation of the relevant provisions of the Directive for a preliminary ruling under Article 234 EC.

Pursuant to the Directive, the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents of the database has the right to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of the database.

However, the ECJ in its ruling stated that for evaluation of whether a certain database was subject to a substantial investment and is, therefore, subject to a sui generis database protection right, can only take into account the resources used exclusively for obtaining, verification and/or presentation of the contents of the database. This means that only the resources used to seek out existing independent materials and collect them in the database can be considered. “The purpose of the protection by the sui generis right provided for by the directive is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.” The resources used to create the contents of the database cannot be considered as being part of the investment for this purpose. This is the case of the costs for drawing up the list of horses in a race and carrying out checks in that connection, which cover a substantial part of the BHB’s resources used in connection with the database, and which, according to the ECJ, cannot be considered as the resources used exclusively for obtaining, verification and/or presentation of the contents of the database.

The holder of the sui generis right to a database can prevent any extraction or re-utilization of the whole or of a substantial part of the contents of the database, notwithstanding whether the contents of the database were made accessible to the public by its maker or not. In addition, the maker of a databases can prevent also any repeated and systematic extraction or re-utilization of non-substantial parts of the contents of the database, in case such actions would unreasonably prejudice the legitimate interests of the maker of the database. As explained by the ECJ in its ruling, this refers to “unauthorized acts of extraction and/or re-utilization, the cumulative effect of which is to reconstitute and/or make available to the public, without the authorization of the maker of the database, the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment made by the maker” of the database.

With respect to the above, the notion “substantial part”, evaluated quantitatively, of the contents of the database shall be interpreted as referring 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”. As stated by the ECJ, the information published on the web site of William Hill represents only a small, insubstantial part of the contents of the BHB’s database. Therefore, the acts of extraction and re-utilization carried out by William Hill, although of a repeated and continuous nature, do not aim to reconstitute and make available to the public the whole or substantial part of the BHB’s database and thereby do not prejudice the investment made by BHB in the creation of the database.