Ahead of next week's monumental rulings of the European Court of Justice in the four database right cases (see the IPKat blog for Sunday 24 October), Richard Budworth (a barrister in 11 Old Square and a database right enthusiast) has sent in this guest blog:
"Football league clubs, through DataCo, are desperately trying to control real-time dissemination of statistics via the internet or texting. They want to charge newspapers who wish to exploit this new technology. The newspapers argue that this will inhibit reporting, and is an attack on their freedom. The battle lines are drawn and at the time of writing there are tense negotiations.The IPKat begs to remind you: don't forget next Tuesday -- that's the day the four ECJ rulings come out. Be sure to read them on the IPKat blog.
The football league collects match data in the interests of having an ‘official’ source. There is no doubt that this collection of data qualifies for sui generis protection under the EU’s database directive. Article 7 gives the maker of the database a right to prevent extraction and/or re-utilisation of the whole or a substantial part, evaluated qualitatively and/or quantitatively. The football league effectively own the statistics they collect during the game.
The clubs want revenue from the papers’ use of digital technology, in particular the internet and texting. Images and statistics which are downloaded and texted are not ‘extracted’ from any database. It’s possible though that they may fall under ‘re-utilisation’. This possibility might be given sustenance by the ECJ if it endorses the opinion of the Advocate General in the William Hill case on the definition of re-utilisation under Article 7(1). It was stated that the term ‘re-utilisation’ in Article 7 covers not only the making available to the public of the contents of the database directly from the database, but also the making available to the public of works, data or other materials which are derived indirectly from the database, without having direct access to the database. In addition, it was stated that acts which prevent the economic exploitation of the sui generis right by its proprietor even on potential markets are to be considered to be ‘acts which conflict with a normal exploitation of that database’. Acts which damage the legitimate economic interests of the maker to a degree which exceeds a certain threshold are to be considered to be ‘acts which unreasonably prejudice the legitimate interests of the maker of the database’. In the Svenska Spel AB case, it was stated that the expression ‘unreasonably prejudice’ in Article 7(5) must be interpreted as referring to damage to the legitimate economic interests of the maker which goes beyond a certain threshold (see the IPKat on 12 June 2004). Cumulatively, this does not make great reading for the press.
While there is no doubt that the football clubs are in a sense responsible for the data in that they put on the match, pay the players, and maintain the grounds, it will be a further intrusion into the public domain, if the Directive permits clubs to restrict and control match data so that photos cannot be downloaded or texts sent during the game. Arguably there should be an exception under the sui generis right for news reporting".