ECJ Rules in Favor of Bookies, Lottery Operators in Fixtures Use Case

A major victory was scored on Tuesday in the European Court of Justice for bookmakers and the gambling industry in their fight to use horse racing and football fixtures without paying a license fee to the companies that compile the information.

The Luxembourg-based ECJ ruled against the British Horseracing Board and Fixtures Marketing in the case. The two companies argued that the race and football fixtures they compiled represented a "substantial investment" and as database creators were protected under EU copyright laws.

The BHB had filed suit against William Hill after the British-based bookmaker was using race fixtures without paying a royalty fee back to the BHB. Fixtures Marketing brought three different cases against lottery operators in Finland, Greece and Sweden. The companies -- Oy Veikkaus of Finland, Svenska Spel of Sweden and OPAP of Greece – were using football fixtures (created by the company) in conjunction with their lottery operations.

Fixtures Marketing Ltd, also based in England, compiles information on the British football leagues and sells it abroad. The firm grants licenses for the use outside the United Kingdom of fixture lists for about 2,000 top English and Scottish football league games a season.

The ECJ combined the four cases into one before handing out is ruling.

In commenting on the BHB/William Hill aspect of the case, the court said that the information that William Hill was using – mainly the running order and jockeys in various UK races – covered only a " tiny part of the whole of the BHB database and is arranged in a different way."

The court said there was no doubt that what the BHB had was a database protected under the rules and regulations of the EU but since William Hill only used a portion of it the company didn't need to get authorization.

Authorization would only be required if William Hill was using "the whole or a substantial part" of the contents of the database. The issue at stake was whether the companies offering the information being used had made a substantial investment in its provision.

There was no major investment by Fixtures Marketing, the judges ruled, and the materials used by William Hill did not constitute a "substantial" part of the contents of the BHB database.

In the Fixtures Marketing portion of the case the court ruled that the UK firm had no right to try and asses a royalty fee from the lottery operators because the information was available to the public through newspapers, TV, the Internet or from soccer clubs themselves.

Fixtures Marketing argued the three European companies had illegally used its information on British football games.

The court felt that the information gathered from the lottery operators wasn't worthy of falling into the "database" category.

The tasks of finding and collecting the data for such a list "do not require any particular effort on the part of the professional leagues," the court said in its ruling.

Peter DeWalt, an attorney with Vlaemmink & Partners in Belgium, said the ruling was a clear victory for the gambling and lottery industry in terms of using information, but those looking for deeper meaning into the courts ruling on other matters for the industry shouldn't read to much into the decision.

"Betting firms and lottery operators were being asked to play a lot for the use of this information," he said. "This is a separate decision from others and really was just looking at the extent to which database law was covered in terms of racing and betting fixtures."

In fact, DeWalt said, William Hill – a privately run betting firm – had partners in the case that were government-run lottery operations.

The public and private gambling sector is battling it out in other ECJ cases that could ultimately decide the fate of gambling monopolies throughout Europe and whether or not privately-held gambling firms have the right under EU fair trade and business laws to operate in other jurisdictions outside of where they are licensed.

"All this really does is provide the industry with some guidance regarding the extent to which databases ought to be protected under European Union law," DeWalt said. "This is more of a database case than it is a gambling case, but it certainly will have a direct impact on bookmakers and lottery operators."

In handing down its decision the court tried to clarify the definition of a "substantial investment" in dealing with database usage.

"The definition. . .covers only the work involved in seeking, collecting, verifying and presenting existing materials and not the resources used to create the materials which make up the database," the court said. "Neither the obtaining, verification nor presentation of the contents of a football list or schedule of horse races constitute substantial investment giving rise to protection against the use of the data by third parties."