Factual and Procedural Background
These combined actions concern alleged infringement of the claimants' rights in respect of horseracing data at six racecourses owned by the second claimant, Company A. The first claimant, Company B, produces live betting and horseracing data collated at racecourses under agreements with course owners and sells it to off-course bookmakers. Company B's rights in relation to the six racecourses derive from an agreement with Company A dated 13 May 2016. Further agreements cover additional racecourses operated by Company B.
Originally, six defendants were involved, but confidential settlements were reached with five. The sole remaining defendant is Company C, which had previously held rights to collect and distribute data from the racecourses but lost those rights as of 1 January 2017. The claim asserts that Company C continued to distribute data unlawfully, infringing the claimants' copyright, confidence, and contract rights, and conspired to injure the claimants by unlawful means. The trial and judgment address issues of liability only.
Legal Issues Presented
- Whether copyright subsists in the Betting Shows produced by Company B's delegate.
- Whether copyright in the Betting Shows was effectively assigned to Company B.
- Whether Company C infringed copyright in the Betting Shows.
- Whether Company C infringed the sui generis database right in the relevant database.
- Whether the Tote (a third party involved in data provision) breached contract and/or confidence obligations.
- Whether Company C breached the terms and conditions of betting exchanges.
- Whether these alleged breaches constitute unlawful means for the tort of conspiracy.
- Whether Company C and others conspired with intent to injure the claimants.
- The requisite mental element for conspiracy by unlawful means, particularly knowledge of unlawfulness.
Arguments of the Parties
Claimants' Arguments
- Betting Shows are original literary works attracting copyright protection.
- Copyright in Betting Shows was assigned to Company B.
- Company C copied Betting Shows by referring to them to create its own prices.
- Company C infringed the sui generis database right in the relevant database.
- The Tote breached contract and confidence obligations by providing Raceday Data to Company C for fixed-odds betting purposes.
- Company C breached betting exchanges' terms and conditions by using their data without permission.
- Company C conspired with others to injure the claimants by unlawful means.
- Knowledge of unlawfulness is not required for conspiracy liability.
Defendant's Arguments
- Betting Shows do not attract copyright as they are the product of routine calculation and lack sufficient skill, labour, or judgment.
- No effective assignment of copyright in Betting Shows to Company B.
- Company C did not copy Betting Shows but created its own prices primarily from betting exchanges and Early Prices.
- Consultation of Betting Shows was limited and ceased early January 2017.
- Company C did not infringe the sui generis database right as it did not extract or re-utilise substantial parts of the database.
- No contractual restriction prevented the Tote from supplying Raceday Data to Company C for fixed-odds betting.
- Company C had assurances from the Tote and believed the data supply was lawful.
- Breaches of betting exchanges' terms and conditions are breaches of contract only and do not constitute unlawful means against the claimants.
- Knowledge of unlawfulness is required for conspiracy liability; Company C lacked such knowledge.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| PCR Ltd v Dow Jones Telerate Ltd [1998] FSR 170 |
Copyright can subsist in statistical information if sufficient skill and judgment are involved. |
Cited but distinguished; facts were far removed from the present case. |
| Bookmakers' Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723 |
Test for copyright subsistence requiring sufficient skill, labor, and judgment in creation. |
Applied analogy to Betting Shows; found insufficient skill in the routine calculation of prices. |
| Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 |
Originality requires that work should originate from the author and not be copied. |
Referred to in assessing originality of Betting Shows. |
| Sawkins v Hyperion Records Ltd [2004] EWHC 1530 (Ch) |
Test for copyright infringement involves copying a substantial part of the claimant's work. |
Applied in considering alleged copying of Betting Shows. |
| Kelly v Morris (1866) LR 1 Eq 697 |
Consultation of a work to verify independent results does not constitute infringement. |
Applied to reject claim that limited reference to Betting Shows amounted to copying. |
| British Horseracing Board Ltd v William Hill Organization Ltd (Case C-203/02) [2005] 1 CMLR 15 |
Consultation of database contents without extraction does not infringe sui generis database rights. |
Applied to reject claim of database right infringement by consultation only. |
| Coco v AN Clark (Engineers) Ltd [1969] RPC 41 |
Requirements for breach of confidence: information must have quality of confidence, imparted in circumstances importing obligation, and unauthorised use causing detriment. |
Applied in assessing breach of confidence claim against Tote and Company C. |
| Douglas v Hello! Ltd (No.3) [2008] 1 AC 1 |
Confidential information can be protected even if it is subsequently published; commercial value and control are key. |
Applied to support claimants' argument on confidentiality of Raceday Data. |
| A.G. v Guardian Newspapers (No.2) [1990] 1 AC 109 |
Once information enters public domain, confidentiality ceases. |
Considered and distinguished on facts relating to timing and nature of data dissemination. |
| Revenue and Customs Commissioners v Total Network SL [2008] AC 1174 |
Criminal conduct can constitute unlawful means for conspiracy tort even if not actionable by claimant. |
Applied to discuss scope of unlawful means in conspiracy claims. |
| JSC BTA Bank v Ablyazov [2018] 2 WLR 1125 |
Unlawful means include acts without just cause or excuse, including criminal acts. |
Applied in analysis of unlawful means and intention to injure. |
| Kuwait Oil Tanker Co SAK v Al-Bader (No.3) [2000] 2 All ER (Comm) 271 |
Elements of conspiracy by unlawful means: combination, unlawful act, intention to cause damage, and damage suffered. |
Applied as foundational test for conspiracy claim. |
| British Industrial Plastics v Ferguson [1938] 4 All ER 504 |
Knowledge of unlawfulness is an essential element of conspiracy to injure by unlawful means. |
Considered in relation to mental element of conspiracy; preferred by the court. |
| Belmont Finance Corporation v Williams Furniture (No.2) [1980] 1 All ER 393 |
Ignorance of law is no defence in conspiracy; knowledge of facts constituting conspiracy suffices. |
Discussed as conflicting authority; court preferred Ferguson on this point. |
| Mulcahy v R (1868) LR 3 HL 306 |
Conspiracy requires agreement to do an unlawful act or to do a lawful act by unlawful means. |
Reinforced the importance of unlawful design in conspiracy. |
| OBG Ltd v Allan [2008] 1 AC 1 |
Clarified intention to injure; loss must be the necessary corollary of gain to defendant. |
Applied in assessing intention to injure in conspiracy claim. |
| WH Newsom Holdings Ltd v IMI Inc [2014] 1 All ER 1132 |
Loss to claimant must necessarily follow from object of conspiracy. |
Applied to clarify intention to injure element. |
Court's Reasoning and Analysis
The court began by examining the nature of the Betting Shows and whether copyright subsists in them. It acknowledged that while some skill and judgment is involved in selecting bookmakers for the sample, the process of calculating each price is routine and lacks sufficient originality. Drawing on precedent, the court found that even if copyright did subsist, the claimants failed to establish infringement by Company C, as limited reference to Betting Shows to minimize price differences does not constitute copying.
Regarding the sui generis database right, the court held that consultation of the Betting Shows does not amount to extraction or re-utilisation of the database contents. It accepted that Company B owned the database right but found no infringement by Company C.
The court then considered the Tote's role in providing Raceday Data to Company C. It found no contractual restriction preventing the Tote from supplying such data for fixed-odds betting, as the relevant agreements did not expressly prohibit this and the Arena Terms were not applicable to the Tote. However, on equitable grounds, the court found that the Tote acquired the data in circumstances importing an obligation of confidence, limiting its use to pool betting.
Company C was aware of the commercial value of the data and the exclusivity granted to Company B. Despite assurances from the Tote, the court concluded that a reasonable person in Company C's position would have appreciated the confidential nature of the data and the limitations on its use, constituting breach of confidence by Company C in using the data for fixed-odds betting.
The court acknowledged that Company C breached the betting exchanges' terms and conditions by using their data without permission initially, but held that such breaches are directed at the exchanges and not the claimants, and therefore do not constitute unlawful means for conspiracy.
On the tort of conspiracy by unlawful means, the court reviewed authorities and concluded that knowledge of unlawfulness is a necessary mental element where the unlawful means consist of breach of private law rights such as breach of confidence. The court rejected the claimants' argument that knowledge was not required.
Applying these principles, the court found that Company C did not have the requisite knowledge of unlawfulness regarding the breach of confidence claim, and no direct evidence supported knowledge of infringement of copyright or database rights by other alleged conspirators. The court found that Company C was aware of and intended to assist bookmakers in gaining leverage against Company B, but this did not amount to intention to injure for conspiracy purposes as harm to Company B was not a necessary corollary.
Holding and Implications
The court's final decision was as follows:
- The claim in conspiracy fails.
- The direct claims against Company C for infringement of copyright and database rights fail.
- The direct claim against Company C for breach of confidence in relation to misuse of Raceday Data succeeds.
The implication is that Company C is liable for breach of confidence but not for copyright or database right infringement or conspiracy. The conspiracy claim is effectively academic given the finding on breach of confidence. No new precedent was established beyond clarifying the necessity of knowledge of unlawfulness in conspiracy claims involving breach of private law rights. The ruling limits liability in conspiracy to cases where defendants know that their conduct infringes the claimant's rights, thus protecting legitimate business competition.