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Thursday 14th July 2005
Court of Appeal allow William Hill's appeal
The Court of Appeal today handed down its decision in the long running battle between BHB and William Hill concerning database rights in pre-race data. The Appeal, heard on 28 June, required Lords Justice Jacob, Pill and Clarke to apply the ECJ ruling handed down in November 2004 (click here and here to read our previous articles on this). Their lordships unanimously determined that the ECJ's judgment was clear and ruled in favour of William Hill.
Background
The original claim brought by BHB concerned the publication by William Hill of data concerning the runners and riders in British horse races on its website. At first instance Laddie J found that William Hill had infringed BHB's database right. However the Court of Appeal referred a number of questions to the ECJ for guidance given the novelty of the database right in legal terms. Many commentators were surprised by the ECJ's judgment that BHB had no valid database right in its collection of pre-race data since it had not made a sufficient substantial investment in creating the database over and above that invested in the creation of its constituent parts.
Hearing on 28 June 2005
Before the Court of Appeal, BHB argued that the ECJ had gone beyond its jurisdiction in seeking to apply its interpretation of the Database Directive to the facts of the case. It should be for the relevant national courts to make findings of fact, not the ECJ. While BHB was happy with the ECJ's guidance on the law, it argued that the assumptions of the facts made were wrong. If the ECJ's guidance is applied to the true facts, BHB contended that it would own actionable database rights infringed by William Hill. However in order to put before the Court of Appeal the 'true' facts, BHB asked for permission to amend its pleadings and submit additional new evidence.
For its part William Hill argued the ECJ's ruling was clear and that the appeal should succeed. Furthermore if BHB were permitted to adduce new evidence, this would lead to a re-trial since William Hill would then be entitled to additional disclosure and the opportunity to cross-examine BHB's new witness.
Court of Appeal's Judgment
The Court dismissed BHB's argument that the ECJ had exceeded its jurisdiction. It was entitled to rule on the legal consequences of given primary facts.
Further, the Court of Appeal were provided with the parties' submissions before the ECJ and were satisfied that the ECJ were presented with the full facts and made no misapprehensions as to BHB's role in the creation of declared lists of runners & riders. The ECJ made it clear that BHB were investing in the 'creation' of the database, rather than in the obtaining, selecting and verification of its constituent parts. Having made such a finding, BHB's database of entries could not qualify for protection.
Lord Justice Jacob explained the logic behind the finding that BHB is creating the list of runners and riders, rather than collecting together existing information provided by owners. Only BHB can provide an official list of runners and riders. He said: 'The database contains unique information - the official list of runners and riders. The nature of the information changes with the stamp of official approval. It becomes something different from a mere database of existing material'.
Their lordships did not feel it necessary to rule on BHB's applications for leave to amend its pleadings and submit additional evidence, as even supposing they were allowed, they thought that the ECJ ruling would cover the new, amended position. In addition, the questions put to the ECJ regarding the extent of material taken from a protected database sufficient to amount to an infringement were not considered since the Court accepted the ECJ's ruling that BHB's database was not protected.
What does this mean for Racing?
It is open to BHB to seek leave to apply to the House of Lords. However, it is unlikely that the Court of Appeal will grant such leave. In any event, BHB's stakeholders may feel that it is now time to bring to a close these costly proceedings.
The Court of Appeal's decision has confirmed the fears expressed by the industry following the ECJ's decision last November. Those overseas bookmakers who have continued to pay data licence fees to BHB since the ECJ's decision are now likely to be advised that they should cease those payments which means that BHB's main source of funding will disappear.
Paul Stevens, a partner at Olswang, whose clients include bookmakers, racecourses and others involved in with the racing industry commented, 'The hopes of the industry now rest with the Commission chaired by Lord Donoughue (and which includes my partner, David Zeffman) who are charged with endeavouring to find a long term commercial replacement for the Levy'.
Olswang contacts
Paul Stevens (tel: 020 7067 3306 and email: paul.stevens@olswang.com)
David Zeffman (tel: 020 7067 3198 and email: david.zeffman@olswang.com)
Olswang is a UK based law firm comprising over 500 staff including 79 partners. Olswang is the leading UK law firm in the areas of Media, Communications and Leisure. Olswang's betting and gaming team comprises 9 partners and 8 other lawyers with significant knowledge and experience spanning the spectrum of betting and gaming issues. Our work includes, on the commercial side, acquisitions and disposals, joint ventures and partnering arrangements with bookmakers, including website linking agreements and marketing agreements, carriage agreements for betting services on interactive television and wireless services together with related interactive television/website development agreements and exclusive bookmaking agreements with sponsorship opportunities. In addition, we advise on competition and regulatory work in the sector, including advising on issues relevant to casinos, both online (and, therefore, for the time being, offshore) and bricks and mortar, both in relation to the current legal position and in terms of the impact of deregulation in the industry, together with related planning issues.
Source:OnlineCasinoNews
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