ACHIEVING A FAIR RETURN TO RACING INTELLECTUAL PROPERTY

ACHIEVING A FAIR RETURN TO RACING INTELLECTUAL PROPERTY RIGHTS 1

IPR & A FAIR SHARE PART 1 – Economic theory and intellectual property law Paris 2012 • Intellectual Property Rights Rationale Exclusive rights framework Creator of intellectual property can reap fruits of investment Investment is made in intellectual property creation Public benefit 2

IPR & A FAIR SHARE PART 1 – Economic theory and intellectual property law Excludable Non-excludable Rivalrous Private Good Common Pool Good Non-rivalrous Club Good Toll Good Paris 2012 Public Good 3

IPR & A FAIR SHARE Paris 2012 PART II – Existing Intellectual Property Law • Q 1 – Does the existing IP regime adequately protect racing against free riding? • Q 2 – Are there other options for achieving an exclusive rights framework? 4

IPR & A FAIR SHARE Paris 2012 PART IIA -- Copyright Expression of facts or information YES Facts or information NO Copyright protection 5

IPR & A FAIR SHARE Paris 2012 PART IIA -- Copyright 6

Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright – Preparatory Steps 1. Catalogue process 2. Written assignment 3. Written acknowledgement 4. Copyright notices • Calendar and Race Program • Nominations Lists • Weights Lists • Progressive Acceptance Lists • Final Fields • Race books • Form guides published in newspaper and elsewhere • Race results 7

Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright 8

Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright – Infringement A. Use ≠ Reproduction B. Reproduction of a “substantial part” 9

Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright 10

IPR & A FAIR SHARE Paris 2012 PART IIB – Sui generis database right 11

IPR & A FAIR SHARE Paris 2012 PART IIB – Sui generis database right 12

Paris 2012 IPR & A FAIR SHARE PART IIB – Sui generis database right Substantial investment in the obtaining, verification or presentation of database contents Sui generis database right 13

Paris 2012 IPR & A FAIR SHARE PART IIB – Sui generis database right • BHB v William Hill • Fixtures Marketing Sui generis database right Content created “inhouse” 14

IPR & A FAIR SHARE PART IIC – Harmonized copyright database Paris 2012 • Harmonized copyright protection to original database – can it protect sporting fixture lists? Football Data. Co v. Yahoo European Court of Justice Court of Appeal High Court 15

IPR & A FAIR SHARE PART III – Race fields legislation as an alternative Paris 2012 Evolution Product fee principle Stage I ARB Australian Racing Ministers Race fields legislation mechanism Stage II ARB Australian Racing Ministers 16

IPR & A FAIR SHARE PART III – Race fields legislation as an alternative Paris 2012 Evolution Stage III Fulcrum of legislation changed from “publish to “use" Stage IV High Court upholds constitutional validity 17

IPR & A FAIR SHARE PART III – Race fields legislation as an alternative Paris 2012 The long arm of the law? 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 • • • - 18

IPR & A FAIR SHARE PART III – Race fields legislation as an alternative Paris 2012 The long arm of the law? 19

IPR & A FAIR SHARE PART III – Race fields legislation as an alternative Paris 2012 Other considerations 1. Free trade & open competition 2. Is race fields legislation possible in Europe? 3. Ripple effects 20

Paris 2012 IPR & A FAIR SHARE 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. 21

Paris 2012 IPR & A FAIR SHARE PART IV – Conclusions Strengths Weaknesses Legal framework already exists Whether copyright subsists in race fields is unclear – test cases needed Racing organiser can initiate enforcement – not Infringement depends on reproducing: reliant on government regulator that may be -Bookmaker taking bets over telephone without unwilling to expend resources on a prosecution Copyright 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 “use” is sufficient Deterrent effect of criminal offence Race fields Requires new law to be enacted 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 external 22

PART V – Developing a strategy 1. Identify interested IFHA members. 2. Scope the issues in each country. 3. Develop template(s). 4. IFHA advocacy. 23