British Horse Racing Board v William Hill Organization Ltd
Reference:  EWCA Civ 863;  RPC 35
Court: Court of Appeal
Judge: Pill, Clarke and Jacob LLJ
Date of judgment: 13 Jul 2005
Summary: Database rights - Meaning of substantial investment in obtaining verification or presentation of contents of database - Sport - Horseracing
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BHB, the governing authority for the British horseracing industry, owned a database of fixture lists and other racing information – in particular final official lists of runners and riders. William Hill bookmakers were licenced to use that information in its betting shops only. When William Hill began to use the data on their website, the Claimants issued proceedings for infringement of their database rights. In 2001, the UK Court of Appeal had referred a number of questions to the ECJ about the interpretation of the Database Directive. The ECJ gave judgment on 9.11.04  RPC 260 and the case was remitted back to the Court of Appeal for determination in the light of that ruling.
(1) Whether the BHB database qualified for database right on the basis that there was substantial investment in either the obtaining, verification or presentation of the contents of the database. (2) The ECJ had held that ‘investment in obtaining the contents of the database’ within the meaning of Art 7(1) of 96/9/EC excluded resources used to create new materials (eg. the lists). The issue was whether BHB had a database right in the official lists on the basis that it was in fact gathering independent data (owners intention to run horses) rather than creating new materials (ie. the lists).
Allowing the appeal by William Hill and holding there was no database right infringement: (1) BHB were not gathering independent materials from owners. Only the BHB were capable of providing the official list of runners and riders. It was this official stamp of authority that marked the list as new material. (2) The question was whether the final published database consisted of existing independent materials.The BHB lists did not. It consisted of unique information – the only official list of runners and riders.
(3) The Court rejected BHB’s argument that the ECJ had misunderstood the facts and once the ECJ ruling was applied to the facts it was clear that the database was made by gathering independent materials. The Court of Appeal did not consider the question of whether there was extraction of a substantial part.
A sophisticated attempt by BHB to avoid the consequences of the ECJ rulings in William Hill and the Fixtures Marketing cases (Case C-46/02; C-338/02) failed. The Court rejected the contention that the creation of official lists of runners and riders amounted to collecting independent materials and strictly applied the ECJ rulings. This means that there is no database right in new materials such as official lists that are created by a single sporting body. The ECJ described the data as ‘essential information’ for those directly involved in horse racing and also for broadcasters, bookmakers and their clients. It is probably the very public interest nature of the information that guided this decision. It shows that whilst sports might be carried out and governed by private entities, these bodies do not have absolute rights in information they are creating. This was yet another intellectual property case where the Court’s focus was on the wording of the Directive and not the UK legislation