Written by Aakanksha Singh*
Relevance of sports data
In 2003, Michael Lewis published his book 'Moneyball: The Art of Winning an Unfair Game' which described the Oakland Athletics and its manager Billy Beane's analytical and evidence-based approach to building a competitive baseball team with a limited budget. Even though data collection in major league games was a common practice at the time, the book popularised analysing comprehensive statistics of variables such as player performance, fixtures, and other event data for making data-driven decisions in a quest for victory. Sports data sets have proved to be immensely valuable and are now considered one of the most important factors in professional and virtual sporting events. The betting industry is almost entirely established on sports data and is one of the biggest revenue generators for big data companies and event owners. Mobile betting applications and websites such as Betway and Bet365 host live betting for almost every sporting event around the globe.
While advancements in technology have facilitated the collection and use of such data, the growing importance of thorough analysis for optimal performance in sporting events has raised questions on the commercial exploitation of the data. In recent years, major event owners, sports leagues, federations, and clubs like of NFL, NHL and etc.; have collaborated with big data companies such as International Business Machines (IBM), STATS, and Elias Sports Bureau to build software solutions that facilitate the collection, management, and analysis of sports data. Despite the increasing utilization and commercialization of sports data, Intellectual Property Laws have not defined legal rights over its collection and ownership.
Scope of copyright protection in the United States and Australia
In the United States, bare facts or data as a collection of such facts are not protected by the Copyright Act, 1976. However, big data companies and other entities that publish comprehensive sports analytics can successfully protect their databases if their data is collected and arranged in a creative or original manner. In National Basketball Association v. Motorola Inc, the Court addressed the copyright infringement claims from the NBA against Motorola, who used its pager technology to transmit live scores and statistics to its customers. The Court held that game-related statistics were not subject to protection under copyright law due to lack of originality. This position of law was further developed in Morris Communications Corp. v. PGA Tour, Inc, where Morris alleged that PGA had violated Section 2 of the Sherman Antitrust Act, 1890 for monopolizing the publication of golf scores by preventing reporters from publishing real-time scores that were collected and published in the first instance by PGA's Real-Time Scoring System (RTSS). The Court held that PGA had exclusive rights and a legitimate business interest over the system solution and the data output and held that PGA could prevent free-riding by placing conditions over the licensing of the enhanced information.
The jurisprudence in Australia is similar to that of the United States, as both jurisdictions seem hesitant in clarifying the position of law regarding copyright protection and ownership rights over sports data. Most state gambling legislation, such as the Gambling Regulation Act, 2003 and Betting Control Act, 1954 in territories of the Australian Commonwealth, define the rules of utilizing event-related information for betting. These laws empower sports governing bodies to exploit sports-related information commercially. However, legal protection for creating and distributing sports data outside the betting industry remains a grey area. Under the Copyright Act, 1968, protection extends to specified expression works that are original and exist in a material form, and Section 10 includes a compilation of any material data or fact in the definition of literary work. However, in Victoria Park Racing & Recreation Grounds Co v. Taylor, the High Court of Australia held that the Australian law does not protect activities related to a sports event.
Similarly, the judgment of IceTV Proprietary Ltd v. Nine Network Australia Proprietary Ltd deterred the inclusion of raw sports data into the definition of literary works significantly, as the Court held that copyright protection does not extend to bare facts or information. The Court emphasized that there must exist an independent intellectual effort and financial input towards a form of expression of the data and originality of the compilation of said data for it to have protection in law. Evidently, the standard for copyright protection in both jurisdictions has shifted from the 'sweat of the brow' approach towards a strict standard of originality.
While event owners cannot protect raw data under copyright law, they can expect legal protection for refined and enhanced data if they prove that independent intellectual effort or sufficient effort was required to create or express it. Event owners may use incidental intellectual property rights by attaching their trademarked logos, emblems or names to fixture lists or performance data created or used in an event to restrict access of third parties. Event owners may also restrict access to the event or contractually bar third parties from collecting data inside the venue using ticketing and employment terms and conditions. * The author is a law Scholar of Jindal Global Law School, India.
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