Bet safe when it comes to commercialising data

It is becoming more common to hear business managers and their advisors talk about “data ownership”, but most legal systems do not recognise a general right of ownership over data – and businesses which do not consider and appreciate the limits of their legal rights may soon find their plans to turn data into revenue being challenged.

A recent ruling by the High Court in London underlines why businesses should look into developing a comprehensive data strategy. In a case which highlights the difficulties for business in treating data as a propriety asset, the High Court ruled that copyright does not subsist in average betting prices for horses at race meetings calculated by an algorithm.

Although the value of data has been recognised for many years in sectors such as

advertising, gambling and insurance, businesses in all sectors are becoming increasingly aware of what data they hold and its value, and inevitably some of those businesses will be looking to commoditise this.

Copyright and database rights only provide protection in limited circumstances and, in the absence of legal ownership rights over data, we believe that processes to keep data confidential and appropriately drafted contracts are the best means for businesses to protect their data.

The first step for data-driven businesses is to put in place a comprehensive strategy. The second is to understand what legal protections they have, and to put in place processes and contracts to safeguard their commercial interests in data.

The High Court dismissed claims from a data supplier, The Racing Partnership (TRP), and racecourse owners that socalled “betting shows” should be protected by copyright in a case brought against a rival provider of data to bookmakers, Sports Information Services (SIS).

Betting shows reflect the average price available for horses from bookmakers in the minutes shortly before the start of a race. They are calculated when a sample of odds offered by on-course bookmakers is fed into an algorithm to determine the average price available on those horses. The information is important to betting companies not present at the race course as it helps them to set their own odds on the horses running.

The High Court said betting show data, along with other raceday information such as the weather conditions, state of the course and changes in jockeys, has “commercial value”, albeit only for “a matter of minutes”.

However, in considering whether copyright subsists, the court found parallels with a dispute ruled on in 1994 involving Bookmakers’ Afternoon Greyhound Services, which claimed that copyright subsisted in forecast dividends calculated at greyhound meetings. The claims were rejected on the basis that insufficient skill, labour and judgment were used to calculate the dividends, derived from a computer-programmed formula that could be repeated.

Mr Justice Zacaroli ruled similarly in the case of the claims that copyright subsists in the betting show data, saying: “In my judgment, the skill and judgment which goes into creating the sample is akin to the skill and judgment which went into the creation of the formula in the BAGS case. Accordingly, while copyright might subsist in a list of the names selected for inclusion in the sample, the process of arriving at each price was ‘pure routine work’, involving no sufficient skill, labour and judgment.”

However, the court ruled that SIS was liable for a breach of confidence in the way it used the raceday data. SIS obtained the raceday data from the Tote, but the court considered that there is “a substantial commercial value in the information, provided it is disseminated to off-course bookmakers as soon as possible” and that this meant the data had the necessary quality of confidence to merit protecting TRP’S exclusive rights to use that data. Lauro Fava, associate and member of the information law team at Pinsent Masons.

Businesses are

increasingly aware of what data they hold and

its value