ACHIEVING A FAIR RETURN TO RACING

INTELLECTUAL PROPERTY RIGHTS

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PART 1 – Economic theory and intellectual property law

• Intellectual Property Rights Rationale

Paris 2012IPR & A FAIR SHARE

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Excludable Non-excludable

Rivalrous Private Good Common Pool Good

Non-rivalrous Club GoodToll Good

Public Good

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PART 1 – Economic theory and intellectual property law

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PART II – Existing Intellectual Property Law

• Q1 – Does the existing IP regime adequately protect racing against free riding?

• Q2 – Are there other options for achieving an exclusive rights framework?

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PART IIA -- Copyright

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Copyright protection

YES NO

Expression of facts or information Facts or information

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PART IIA -- Copyright

Copyright – Preparatory Steps1.Catalogue process2.Written assignment3.Written acknowledgement4.Copyright notices •Calendar and Race Program•Nominations Lists •Weights Lists•Progressive Acceptance Lists•Acceptance Lists•Final Fields•Race books•Form guides published in newspaper and elsewhere•Race results

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PART IIA -- Copyright

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PART IIA -- Copyright

Copyright – Infringement

A.Use ≠ ReproductionB.Reproduction of a “substantial part”

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PART IIA -- Copyright

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PART IIA -- Copyright

PART IIB – Sui generis database right

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PART IIB – Sui generis database right

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PART IIB – Sui generis database right

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Substantial investment in the obtaining, verification or presentation of database contents

Sui generis database right

• BHB v William Hill • Fixtures Marketing

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PART IIB – Sui generis database right

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Sui generis database right

Content created “in-house”

PART IIC – Harmonized copyright database

• Harmonized copyright protection to original database – can it protect sporting fixture lists?

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Football DataCo v. YahooEuropean Court of Justice

High Court

Court of Appeal

PART III – Race fields legislation as an alternative

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Evolution

Stage I ARB Australian Racing Ministers

Stage II ARB Australian Racing Ministers

Product fee principle

Race fields legislation mechanism

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PART III – Race fields legislation as an alternative

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Evolution

Stage III Fulcrum of legislation changed from “publish to “use"

Stage IV High Court upholds constitutional validity

• Offence to use in Australia “or elsewhere”• Crimes Act• Extradition- Decision to request extradition – Minister for

Justice & Customs- Maximum penalty of ≥12 months- Dual criminality

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PART III – Race fields legislation as an alternative

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The long arm of the law?

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PART III – Race fields legislation as an alternative

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The long arm of the law?

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1. Free trade & open competition2. Is race fields legislation possible in Europe?3. Ripple effects

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PART III – Race fields legislation as an alternative

Other considerations

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PART IV – Conclusions

1. Sui generis database right is a dead letter for racing.

2. Scope for Europe to use database copyright will be made clearer by English Court of Appeal decision in Football Dataco.

3. Outside Europe scope for copyright to be used against free riding wagering operators potentially exists, but the tests applied vary around the world.

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Strengths Weaknesses

Copyright

Legal framework already exists Whether copyright subsists in race fields is unclear –

test cases needed

Racing organiser can initiate enforcement – not

reliant on government regulator that may be

unwilling to expend resources on a prosecution

Infringement depends on reproducing:

-Bookmaker taking bets over telephone without

publishing race field does not infringe

-Bookmaker that reproduces only slivers of the race

field may not infringe

Marginal utility where wagering operator is external

Race fields

“use” is sufficient Requires new law to be enacted

Deterrent effect of criminal offence Race organizer cannot initiate enforcement – is reliant

on government regulator that may be unwilling to

expend resources on presentation

Effectiveness is reduced where wagering operator is

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PART IV – ConclusionsParis 2012IPR & A FAIR SHARE

PART V – Developing a strategy

1. Identify interested IFHA members.2. Scope the issues in each country. 3. Develop template(s).4. IFHA advocacy.

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