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04 Jun 2009

Race fields are still odds-on in the copyright game

by Richard Hoad, Chris McLeod

The High Court’s recent decision suggests an important shift in the degree to which copyright protects compilations such as sporting fixtures and race fields.

Sporting organisations rely on the licensing of copyright in race fields and fixtures to provide an important source of revenue. This raises the contentious issue of whether compilations of facts such as telephone directories, race fields, sporting fixtures and program guides are protected by Australian copyright law (and therefore whether third parties need a licence to copy them or whether they can freely do so). On the one hand, copyright law does not protect mere facts or information. On the other hand, the Copyright Act makes it clear that copyright can subsist in compilations.

The issue has taken another turn, with the High Court’s decision in late April 2009 in the IceTV Guide case [2009] HCA 14, in which the Court grappled with copyright issues arising from a factual compilation. What does the decision mean for sporting organisations?

Time and effort or skill and judgment?

The high-water mark for copyright protection for compilations came in the Desktop Marketing case [2002] FCAFC 112. The Full Federal Court found that Telstra had copyright in its White Pages, effectively applying a "sweat of the brow" approach to copyright protection. In other words, Telstra’s investment of significant time and resources to gather the information included in its telephone directory was sufficient to provide copyright protection.

The High Court’s decision in the IceTV Guide case may suggest the tide is turning. Although the High Court did not need to (and did not) expressly override the "sweat of the brow" approach, it suggested that this may no longer be the correct test. To obtain copyright protection for a compilation, it may now be necessary to show that the authors of a factual compilation exercised some amount of skill, judgment and knowledge in selecting the data for inclusion in the compilation, and in presenting and arranging that material (although the degree of labour and expense involved should still be relevant).

For those who create race fields and sporting fixtures, there are two main questions:

  • Does copyright protect race fields and sporting fixtures?
  • If so, when will that copyright be infringed?

Does copyright protect sporting fixtures and race fields?

Let’s look at two examples at opposite ends of the spectrum:

  • Telephone directories: It now seems unlikely that a mere listing of data in chronological or alphabetical order (such as a telephone directory) would be protected by copyright.
  • Thoroughbred race fields: On the other hand, it is likely that thoroughbred race fields are still protected by copyright. Although horses in thoroughbred races are typically listed in race lists according to their weight, the creation and ultimate expression of these lists does involve skill and judgment. This is particularly so in setting and allocating the weights themselves (because they are based on systems which involve all horses receiving a "rating" which is altered depending on their performance from race to race), ensuring only eligible horses are listed, and complying with relevant rules of racing.

Whether copyright subsists in other race fields and sporting fixtures will depend on the nature of those race fields and sporting fixtures and how they were created.

When will copyright be infringed in sporting fixtures and race fields?

Assuming that copyright does protect your particular race field or sporting fixture, how much can other people take without your permission?

Each alleged infringement of copyright must be assessed on a case-by-case basis. A critical factor is always the degree to which the allegedly infringing work is derived from the original sporting fixture or race field. It will only be an infringement if at least a "substantial part" of the copyright material is taken. The main issue here is the quality, not the quantity, of the part taken – how original is (ie. what degree of intellectual effort was involved in creating) the part that was copied?

Again, let’s consider thoroughbred race fields. Copying details of a single horse from a race field is unlikely to infringe any copyright in the race field. On the other hand, providing a list of all horses in the same order as the copyright race field (but excluding some of the other information in the race field) is likely to be an infringement. There is obviously a whole range of possibilities between those two scenarios.

What does the future hold for assertions of copyright by sporting bodies?

To varying degrees, many major sporting organisations rely on revenue generated by copyright licences (particularly licences granted to wagering operators). Some States in Australia have provided specific legislative protection for race fields[1]. This is in addition to protection by copyright.

Sporting organisations should obtain expert advice as to how they can best protect their factual compilations. For example, they should maintain records of the individuals who are involved in producing the compilations (and ensure that those individuals are either employees or have assigned their copyright in writing). This will ensure that sporting organisations have done everything possible to protect the revenue they derive from licensing these compilations. This will put sporting organisations in a good position to launch an attack on those who copy race fields and sporting fixtures without first obtaining a licence to do so.

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[1] See for example sections 2.5.19A to 2.5.19F of the Gambling Regulation Act 2003 (Vic) and sections 32A to 33F of the Racing Administration Act 1998 (NSW).Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.