British Horseracing Board Ltd and Others v William Hill

[Donald ramsbottom]

Here is a case from todays Times Law report. Do not read if not interested.
It concerns data base use and various database directives, and even has a
bit on interpretation. Not crypto I know, but may be of interest.




British Horseracing Board Ltd and Others v William Hill

Organisation Ltd Before Mr Justice Laddie
Judgment February 9, 2001

Regardless of copyright, the owner of a database who could show
substantial investment in obtaining, verifying or presenting its
contents was entitled to restrain indefinitely any unauthorised
re-use of a substantial part or any unauthorised repeated re-use of
an insubstantial part of it.

Mr Justice Laddie so held in the Chancery Division, in holding that
the defendant, William Hill Organisation Ltd had since its launch of
two Internet sites, the International Site on February 3, 2000 and
the UK Site on March 13, 2000, infringed the database rights of
the claimants, the British Horseracing Board Ltd, the Jockey Club
and Weatherbys Group Ltd.

The Copyright and Rights in Databases Regulations (SI 1997 No
3032) amended the Copyright, Designs and Patents Act 1988 to
implement EC Directive 96/9/EC (OJ 1996 L77/20) on the legal
protection of databases. For convenience, his Lordship referred to
the articles of the Directive.

Mr Peter Prescott, QC and Miss Lindsay Lane for the claimants;
Mr Mark Platts-Mills, QC and Mr James Abrahams for Hill.

MR JUSTICE LADDIE said that the British Horseracing Board, a
company limited by guarantee, was formed in 1993 to take over
twelve of the functions formerly carried on by the Jockey Club,
which had retained its principal regulatory function within British
horse racing.

The board undertook an annual process culminating in weekly
advertisement in The Racing Calendar of some 7,800 races. In
2000 there had been 175,000 entries, 80,000 declarations to run
and 80,000 related declarations of riders.

In support of its functions the board maintained, at a cost of some
=A34 million a year, a computerised collection of information, the
board database. Fees charged to third parties for use of
information therein yielded just over =A31 million a year.

First, the board made data available to Racing Pages Ltd, jointly
owned by Weatherbys and the Press Association, which, normally
on the day before a race, made it available to various subscribers
in electronic form called a declarations feed.

Second, the board allowed Satellite Information Services Ltd to
use data, called a raw data feed, for certain purposes including use
by its own subscribers.

In May 1999 Hill, which had established its first Internet site in
1996 to promote its telephone betting business, began to develop
a comprehensive service covering the majority of horse racing. Its
International Site was launched on February 3, 2000 and its UK
Site on March 13, 2000.

Members of the public could access either site over the Internet,
see what horses were running and, if they wished, place bets
electronically.

It was not disputed that Hill's information about courses, horses,
dates and times came from the raw data feed which Hill had
received from Satellite Information Services; nor that the same
information was supplied to SIS from data stored on the board's
computer.

The board claimed that each day's use by Hill of data taken from
the raw data feed was an extraction or re-utilisation of a
substantial part of the board's database, contrary to article 7(1) of
the Directive; alternatively, that Hill's actions amounted to
systematic extraction or re-utilisation of insubstantial parts of the
database, contrary to article 7(5).

Hill contended that although the information on its websites was
admitted to be derived from the raw data feed, it was also
identical to the information supplied by Racing Pages Ltd in the
declarations feed, which Hill used for its telephone betting service,
or might have been obtained by SIS directly from various
racecourses.

But, on the evidence, his Lordship thought it virtually certain that
SIS, being supplied with accurate, up-to-the-minute data from the
board, would rely on no other source.

Mr Platts-Mills' inter-related arguments in reply had been: (i) what
Hill had used was not a part, in the relevant sense, of that
database; (ii) even if it was, it was not "a substantial part"; (iii) its
use of that database did not amount to "extraction" from it; and
(iv) it was not a "re-utilisation" of it.

The first was his most fundamental submission: namely, that one
must distinguish between the information within a database and the
characteristics which gave rise to the new type of protection.

Database right did not protect the information, per se, within the
database right, he argued, so the board could not use any
database right it owned to prevent Hill, or anyone else, from
making use of any fact within it.

Taking facts alone, whether one or all, could never infringe
database right. What was protected, was the "database-ness" of
the collection of information: namely, its features as described in
article 1(2).

Acts which did not make any use of the arrangement of its
contents, nor take advantage of the way in which the maker had
rendered the contents individually accessible, could not infringe the
database right, he submitted.

His Lordship rejected that submission. It led inevitably to one that
taking all a database's contents was not taking a part of it, if the
contents were not taken in substantially the same arrangement as in
the claimant's product.

It became the more unattractive by counsel's correct concession
that, with modern software, any collection of data stored in
computer memory was capable of being accessed and searched.

The topic could be approached more simply: certain kinds of use
or manipulation of parts of the contents of the database were
prohibited. The answer to the question "Is a collection of data
taken from the database a part of its contents?" must be "Yes"
which was also be the answer to Mr Platts-Mills' second.

As to his thrid and fourth arguments, his Lordship was not even
convinced that they were internally consistent.

All that the Directive required was that a substantial part of the
contents of the database be transferred to a new medium: it did
not require that extraction should be direct, nor did the definition
involve the concept of taking away.

As to re-utilisation, it was argued that in article 7(2)(b) "making
available to the public" involved telling the public something it did
not already know, so only covered first publication.

But there was nothing in the Directive suggesting that the right to
prevent re-utilisation was restricted to secret data on a database: it
was concerned with the unlicensed use of data derived without
permission from a database.

Had the draftsman of the Directive intended to cover only first
publication he would have said so explicitly, thus undermining the
purpose of the Directive to protect the investment which went into
making databases.

It followed that Hill's takings of information from the raw data feed
and loading them on to its own computers, for the purpose of
making them available on its website, were unlicensed acts of
extracting substantial parts of the board Database; and subsequent
transmissions of such data on to Hill's website for access by
members of the public were prohibited re-utilisations.

His Lordship also upheld an alternative submission by counsel for
the claimants, founded on article 7(5) and the extraction by Hill of
insubstantial parts of the board database, holding that that
database was to be regarded as one database in a state of
constant revision, and that Hill's borrowings from it, from day to
day, came within article 7(5) as repeated and systematic
extractions and re-utilisations of parts of its contents.


Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
Internet and Global Encryption Law Specialists & General UK  Law Matters
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