Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
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Appeal route
- This judgment [2019] EWHC 1156 (Ch) High Court (Chancery Division)
- Appealed to[2020] EWCA Civ 1300Outcomesis’s appeal allowed by a majority of 2–1; trp’s cross-appeal allowed in part by a different majority of 2–1.
Key cases cited
27 authorities cited.
- JSC BTA Bank v Khrapunov [2018] UKSC 19
- Total Network SL (a company incorporated in Spain) (Original Respondents and Cross-appellants) v Her Majesty's Revenue and Customs (suing as Commissioners of Customs and Excise) (Original Appellants and Cross-respondents) [2008] UKHL 19
- OBG Limited and others (Appellants) v. Allan and others (Respondents) Douglas and another and others (Appellants) v. Hello! Limited and others (Respondents) Mainstream Properties Limited (Appellants) v. Young and others and another (Respondents) [2007] UKHL 21
- Twinsectra Limited v Yardley and Others [2002] UKHL 12
- Attorney General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6
- Matalia v Warwickshire County Council [2017] EWCA Civ 991
- WH Newson Holding Ltd & Ors v IMI Plc & Ors [2013] EWCA Civ 1377
- Meretz Investments NV & Anor v ACP Ltd. & Ors [2007] EWCA Civ 1303
- Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565
- Mainstream v Young [2005] IRLR 964
- Kuwait Oil Tanker Co SAK v Al-Bader (No 3) [2000] 2 All ER (Comm) 271
- Stobart Group Ltd v Tinkler [2019] EWHC 258 (Comm)
- Primary Group (UK) Ltd & Ors v The Royal Bank of Scotland Plc & Anor [2014] EWHC 1082 (Ch)
- First Subsea Ltd v Balltec Ltd & Ors [2014] EWHC 866 (Ch)
- Digicel (St Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2010] EWHC 774 (Ch)
- British Horseracing Board Ltd v William Hill Organisation Ltd (Note) Case C-203/02
- PCR Ltd v Dow Jones Telerate Ltd [1998] FSR 170
- Bookmakers' Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723
- Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173
- Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) [1980] 1 All ER 393
- Coco v AN Clark (Engineers) Ltd [1969] RPC 41
- Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
- Saltman Engineering Co. Ltd. v Campbell Engineering Co. Ltd. (1948) 65 RPC 203
- British Industrial Plastics Ltd v Ferguson [1938] 4 All ER 504
- Sorrell v Smith [1925] AC 700
- Mulcahy v R (1868) LR 3 HL 306
- Kelly v Morris (1866) LR 1 Eq 697
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Cases citing this case
3 later cases · 1 positive · 1 neutral · 1 caution
Most senior citing decisions:
- Bernard Jacob Carl v John Hawkins & Ors [2024] EWHC 2186 (Ch) followed
- IMG Data Limited v Perform Content Services Limited [2023] EWHC 3244 (Ch) explained
- Taylor v Van Dutch Marine Holding Ltd & Ors [2019] EWHC 1951 (Ch) considered
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