The Racing Partnership Ltd & Ors v Done Brothers (Cash Betting) Ltd & Ors

Copyright in an algorithmically generated betting price will not ordinarily subsist merely because skill and judgment were used to select the input data. In any event, consulting an existing work to verify independently derived results does not amount to copying. A price which is merely similar, but not identical, is not a copy of a substantial part of a simple betting-price work.

Commercial information may retain a confidential quality for the short period necessary to exploit an exclusive right of dissemination, even though it is intended for prompt publication. For unlawful-means conspiracy based on breach of confidence, the defendant must know, or turn a blind eye to whether, the claimant’s rights are being infringed. A breach of contract owed solely to a third party is not unlawful means where it is merely incidental to the claimant’s loss.

The claimants operated an exclusive horseracing data service for bookmakers. They alleged that Sports Information Services Ltd continued supplying betting prices and raceday data after its contractual rights had ended. The claims included copyright infringement, infringement of a sui generis database right, breach of confidence, breach of contract and unlawful-means conspiracy.

The trial concerned liability only. The central questions were whether the betting prices were protected works, whether the alleged conduct constituted copying or database extraction, whether raceday data was confidential and used in breach of confidence, and whether the alleged breaches could constitute unlawful means in a conspiracy.

1. Copyright and database rights. The claim for copyright infringement failed. Although skill and judgment were involved in selecting bookmakers whose prices fed an algorithm, the creation of each betting price was essentially routine. Applying Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd, the judge would have held that copyright did not subsist in each individual price, although the issue was not necessary to the result. The alleged conduct did not constitute copying even assuming copyright subsisted. A different price could not be a copy of a substantial part of a simple price, and checking an independently derived price against the published price was legitimate verification within Kelly v Morris. The database-right claim likewise failed: consultation of the betting shows was neither extraction nor reutilisation of the RDT Database, and there was no repeated and systematic extraction capable of reconstructing a substantial part.
2. Contract. Neither the Tote Agreement nor the general Arena Terms prohibited the Tote from supplying raceday data to SIS. The special media conditions did not apply because the Tote had not been expressly admitted on that basis.
3. Confidence. Raceday Data had commercial confidentiality. Arena controlled access to it, imposed restrictions on dissemination, and exploited it through an exclusive right granted to TRP. Its intended publication did not destroy confidentiality during the short period required for TRP to exercise that exclusive right. The Tote acquired the information for pool-betting purposes in circumstances importing an obligation of confidence. SIS knew the relevant circumstances and, viewed objectively, ought to have appreciated the restriction, notwithstanding the Tote’s assurances and indemnity. SIS’s use of the data for fixed-odds betting was unauthorised and detrimental. The direct claim for breach of confidence therefore succeeded.
4. Conspiracy. A breach of a third party’s contract is not unlawful means where the breach is directed only at that third party and is merely incidental to the claimant’s loss. For conspiracy based on breach of confidence, knowledge of the infringement, including blind-eye knowledge, is required and the claimant bears the burden of proving it. SIS lacked that requisite knowledge. The conspiracy claim therefore failed.