With improvements in technology, more and more data about sporting events is being captured. A number of different groups claim to 'own' such data - the players themselves ("the data wouldn't exist if we didn't participate"), the data companies ("it's our technology which is driving data collection and analytics") and the sports rightsowners themselves ("it's our competition").
The truth is that there is no property right in information itself. Nobody owns the fact that a goal has been scored, or foul has occurred. That is pre-existing, factual data. But, in Europe, there is an ability, through the sui database right, for those who make a substantial investment in obtaining, verifying and presenting data, to obtain an intellectual property right in the resultant database into which the data is stored. Rights in the database can be owned and can be exploited as a valuable asset of the database owner. The sui generis database right enables the database owner to prevent "extraction" and "re-utilisation" of the data. Those terms have broad meanings under European law and include copying and/or distribution to the public of a substantial part of the data in the database (assessed qualitatively, rather than quantitatively). It is also unlawful to copy and/or distribute to the public insubstantial parts of the database on a repeated and systematic basis.
The database right will often belong to the competition or event organisers who make a substantial investment in an "official" data feed. The investment might comprise investment in the technical infrastructure eg. high speed broadband in stadia to support fast extraction of data. It may also comprise investment in a large team of people or "data scouts" who will watch the live action and record certain data points. The collection of sports data can be a very labour intensive process. By way of example of the ability to claim and exploit a database right, the English and Scottish football leagues have successfully established (in court proceedings in England, which were subsequently referred to the CJEU) a database right in their database of live match day data (known as "Football Live"). The English Court of Appeal, has ruled that "A sui generis database right subsists in the database consisting of information gathered “live” by the claimants’ (FDC’s) agents from football matches as those matches proceed." 1. The reason given by the Court is due to "The considerable investment which goes into Football Live (of the order of £600,000 per annum) [which] clearly justifies Floyd J’s decision that Football Live is a protected database."
There are a few things to note about the database right and its applicability to sports data:
- The database right does not apply to data which the database owner creates, where the investment is in the creation (as opposed to collection) of data. This is why British Horseracing Board (the then governing authority for horseracing in the UK) was unable to establish a database right in their "runners and riders" pre-race information; and why English football was unable to obtain a database right in its fixture lists. By contrast, events on the field are clearly pre-existing, rather than created data, so the database right can subsist. Factual data which is collected and recorded at a live event such as a football match about events outside the control of the person doing the collection and recording, is not created by that person, but merely obtained by him
- "if the referee says the ball was over the line (not “back of the net” – does a net have a back?) and signals a goal has been scored, it has. Any spectator who tells someone that it has been scored is not creating data. If he adds his opinion that it could be the goal of the month, that is his creation."2
This raises some interesting questions for data gatherers who are collecting more subjective data eg. "man of the match" data, for which the collector is unlikely to obtain a database right.
- The database right lasts for a lot shorter period than other intellectual property rights, and is only available for 15 years from first making available of the database. This may not be so much of an issue in relation to sports where the value of data is exponentially more valuable in the 'live' environment
- The laws relating to IP protection of data and databases vary significantly between different jurisdictions, which naturally poses a challenge to sports businesses which are often looking to protect and exploit data on an international basis. For example, in the USA, there is no equivalent protection to the European sui generis database right. Because it is factual, the data cannot be copyrighted as a matter of both US constitutional law (see Feist Publications, Inc. v. Rural Telephone Service Co.) and statutory copyright law (federal Copyright Act 17 U.S.C. § 102(b)). However, other laws (other than intellectual property laws) have come to the rescue of US sports, with the organiser of a sporting event being able to protect the commercial value of that event from misappropriation by a third party3
So what about the legality of using an unofficial data source?
Typically, sports event organisers will seek to protect their investment in the official data not only through the database right, but also by layering on top of that certain contractual protections seeking to prevent unofficial data gatherers from entering the stadium to collect unofficial data. This is generally done through ticketing terms and conditions which may contain express conditions of entry that include a ban on commercial activity, or a ban on the use of mobile phones save for private/ personal use. Ticketing terms and conditions may also contain terms which assign to the event organiser any rights in data which has been collected in breach of contract. Additionally, they may include a provision deeming anyone in who is in breach of the ticketing terms and conditions to be a trespasser, entitling event organiser to eject any such person from the stadium.
This is all perfectly permissible, as a landowner (that is, in the sporting context, the owner of the stadium) has the right to exclude anyone from his land and to impose whatever conditions he sees fit on anyone whom he permits to enter it. A spectator who purchases a ticket to watch an event in the stadium is a contractual licensee. Provided he complies with the terms of his licence, he is entitled to remain in the stadium and remain there during the game.
"The effect of a licence by A. to permit B. to enter upon A.'s land or to use his premises for some purpose is in effect an authority which prevents B. from being regarded as a trespasser when he avails himself of the licence…Such a licence may fall into one of various classes…There is yet a third variant of a licence for value which constantly occurs, as in the sale of a ticket to enter premises and witness a particular event, such as a ticket for a seat at a particular performance at a theatre or for entering private ground to witness a day's sport. In this last class of case, the implication of the arrangement, however it may be classified in law, plainly is that the ticket entitles the purchaser to enter and, if he behaves himself, to remain on the premises until the end of the event which he has paid his money to witness. … The licence in such a case is granted under contractual conditions, one of which is that a well-behaved licensee shall not be treated as a trespasser until the event which he has paid to see is over, and until he has reasonable time thereafter to depart4…"
However, a licensee who does not comply with the terms and conditions on which he is allowed to enter the stadium becomes a trespasser and is liable to eviction from the ground:
"... in my opinion this duty to an invitee only extends so long as and so far as the invitee is making what can reasonably be contemplated as an ordinary and reasonable use of the premises by the invitee for the purposes for which he has been invited. He is not invited to use any part of the premises for purposes which he knows are wrongfully dangerous and constitute an improper use. As Scrutton L.J. has pointedly said: "When you invite a person into your house to use the staircase you do not invite him to slide down the banisters….So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.5
Whilst the person primarily liable for the trespass would be the scout in the stadium who breaches the ticket conditions, there are grounds to suggest that others who assist and/or actively co-operate in the trespass could also be legally liable as joint tortfeasors. The pool of people liable could include the unauthorised data company which sends the scout into the grounds, or perhaps even a sports broadcaster that commissions or requests such activity.
There have been numerous examples of sports events operators ejecting unauthorised data gatherers from their grounds under these principles. For example, the England and Wales Cricket Board have publicised the fact that spectators have been ejected from their grounds. Similarly, at the US Open in 2016, 20 spectators who were caught courtsiding were placed under bans that prohibited them from attending the tournament for next 20 years. One of those individuals was subsequently arrested for trespassing after being spotted at the same tournament a year later in 2017.
In addition to contractual remedies, other sports organisations have attempted to use specifically enacted Courtsiding criminal offences to tackle the problem. There was a high profile arrest in 2014 at the Australian Tennis open when a 22-year-old British man, Daniel Dobson, was arrested for court siding. He had an electronic device sewn into his shorts and was relaying scores to his employers, a company called Sporting Data. He was arrested and subsequently charged with engaging in conduct to corrupt a betting outcome, an offence under the Victorian State Integrity in Sports Act 2013. However, in the end the prosecution did not proceed, and the case was subsequently withdrawn in March 2014.
There is a similar offence in the UK's gambling legislation, namely section 42 of the Gambling Act 2005 which makes it an office is a person "cheats at gambling" or "does anything for the purpose of enabling or assisting another person to cheat at gambling".
But the difficulty with these offences is that it can be hard to prove to the criminal standard (ie. beyond reasonable doubt) that the unofficial data gatherer is acting in a corrupt manner to assist with cheating. Unofficial data gatherers cannot be said (in a number of cases) to have such an intention.
Alternatively, there is precedent in the film industry where there are numerous examples of case law in the UK confirming that the illegal recording with a video camera or other recording equipment by a member of the public in the cinema (who has paid for entry, on conditions) can constitute a criminal offence contrary to sections 6 and 7 of the UK's Fraud Act 2006. By analogy, could it be possible that offences of fraud by false representation (because in entering the sports ground, the 'data scout' impliedly represents that he will not breach the ticketing T&Cs), and fraud by possession of articles for use in fraud (because the "data scout" has a ticket, a mobile device for use in transmitting the data and the data itself)? Similarly, if this has been done in concert with the unauthorised data company which sends their scouts into the grounds, or perhaps even a sports broadcaster that commissions such activity, then are there grounds to pursue conspiracy offences?
What is very clear is that the value attaching to live data from sporting events is increasing. It is important for sports organisations to do what they can to protect and enforce their investment in data collection. It is also important for consumers of data to understand where the data they are using is coming from, and whether any liability attaches to them as a result of such use.
No ambitious sports business can afford to live without a strategy in relation to the acquisition, protection and exploitation of its data.