Sports statistics – watching sport just wouldn’t be the same without them these days. What percentage of second serves did Federer make to the backhand? What percent of penalties did Messi take to the left side of the goal? What is the average number of offloads from Paul Gallen per game? These statistics are useful of course, not just to add commentator insight, but for the players and coaches for training purposes. Who creates those statistics and what sort of rights are there in sports statistics?
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Reepy_au, “IMG_0676”, 9 June 2012, Creative Commons Attribution-ShareAlike 2.0 Generic Licence.
A discrete statistic will not generally be protected by copyright, being a mere fact. However, the way in which those statistics are expressed, such as in a compilation or database, might be protected by copyright. But it is not just the statistics themselves that might be valuable. In order to generate the statistics, a list of input criteria or an input template is generated of the particular events that can occur during a match. A sports statistics company may want to protect its underlying database or input criteria.
In recent proceeding in the Federal Court (Sports Data Pty Ltd v Prozone Sports Australia Pty Ltd  FCA 595), it was this input template or set of input criteria that was in issue. In the context of an interlocutory injunction application brought by Sports Data, Sports Data alleged that Prozone had used or copied the input criteria that Sports Data had developed over many years in respect of the NRL. Sports Data argued that in using this input criteria, Prozone had infringed its copyright and misused its confidential information.
The facts behind the stats
Sports Data collects, analyses and provides data and statistics relating to sporting events, and for many years, it was the official supplier of statistics to the NRL and also supplied statistics to NRL clubs. By 2013, Sports Data had developed a list of over 700 events which could occur during a rugby league game, each of which had short descriptions (e.g. “Try Assist – kick banana” or “Tackle break – broken”). If those events were captured, they could produce valuable statistics and analysis of the game.
This relationship between Sports Data and the NRL was terminated in December 2013. The NRL then appointed Prozone Sports as the official supplier of statistics. Prozone started out in December 2013 with a template which was based on international rugby union event descriptions, and revised this template before the commencement of the 2014 NRL seas following feedback from NRL clubs. Sports Data alleged that at some time between December 2014 and February 2014, Prozone was provided with Sports Data’s input criteria. Sports Data said that it was impossible for Prozone to have developed its own event template in such a short period of time and pointed to the similarities in the event descriptions in Sports Data’s input criteria and in Prozone’s event templates.
The interlocutory decision
Sports Data sought an interlocutory injunction against Prozone in the Federal Court, which required that it make out a prima facie case of copyright infringement or misuse of confidential information.
While Justice Wigney agreed that there was a prima facie inference that Prozone had been provided with information about Sports Data’s input criteria by the NRL or one of the NRL clubs, his Honour nevertheless refused to grant interlocutory relief in favour of Sports Data. One of the fundamental difficulties for Sports Data arose in relation to the question of whether the copying of discrete input criteria involved the reproduction of a substantial part of a compilation, or database in which Sports Data owned copyright. Justice Wigney considered that it would be difficult to argue that the individual events and descriptions were confidential or protected by copyright. However, it was then difficult to establish that Prozone has used or copied the entire compilation of input criteria.
Turning first to confidential information, Justice Wigney found that there were difficulties in establishing a prima facie case that there had been a breach of confidence:
- While Sports Data had a notice on its website that the database was confidential, the information could be accessed without going to the website and it was not made clear to the NRL clubs that the information was confidential.
- While there was a reasonable inference that Prozone may have received the information innocently, Sports Data argued that Prozone was put on notice that it was confidential. However, Justice Wigney found that the “notice” concerned copyright, not confidential information, that there had been significant delay and that Prozone had acted innocently and had altered its position and commercial affairs. These factors lead his Honour to view that it was doubtful on the present evidence that Sports Data would be entitled, at final hearing, to relief for breach of confidence.
Turning second to copyright, Justice Wigney found that there were difficulties in establishing a prima facie case that its Sports Data’s copyright had been infringed:
- Justice Wigney considered that there was a prima facie case that copyright subsisted in the four tables that were part of a relational database – the compilation of the event descriptions, their selection and arrangement involved sufficient originality and effort.
- While it seemed that Prozone received information which included some of Sport’s Data’s input criteria, Justice Wigney found that there was not a prima facie case that there had been a substantial reproduction of that information. There did not appear to be a substantial objective similarity of the selection, structure and arrangement of the event descriptions. In addition, while it could be inferred that information had been received by Prozone, this was not necessarily a substantial part, nor could it be inferred that Prozone’s development of its own event template involved substantial copying of Sports Data’s work.
Justice Wigney raised (but did not answer) an interesting copyright question – was it legitimate to claim copyright in work that is contained within a larger work, particularly when the question of infringement rests on whether there has been a “substantial” reproduction of the work? In other words, can a copyright owner skirt around the “substantiality” element by confining the relevant works to a small part of a large whole? Unfortunately, Justice Wigney did not have the need to decide this question, but this is a question that may be considered at the final hearing, should this case proceed to trial.