[Ed Note: The following post is part of the TLF Editorial Board Test 2020-21. It has been authored by Dhananjay Dhonchak, a second year student of NALSAR University of Law.]
The commercialisation of sport coupled with advancements in technology have made it possible to collect and analyse vast reams of data generated in sporting activities. The information generated can take various forms such as physiological data of athletes, event and even fan-data. This article specifically focuses on event data and the legal concerns relating to its ownership and control.
Event data such as the live scores of the game, its broadcasting, live commentary and other general statistics is different from more personal data of the athletes such as their physiological or genetic data. The distinction lies in the mode of collecting the data. Event data is collected by manual research and observation of the game whereas performance data is collected in more intrusive ways such as the use of wearable technology, etc. The event organiser is considered as the primary gatekeeper for access to event data. As the event is conducted by the organiser and participation in the event is determined by them, athletes are usually required to forgo any rights or claims in their performances at the event. Thus, the images or recordings of such performances lies with the event organiser. This article will first try to explain the key issues with regard to event data by taking examples from all around the globe and then elucidate how similar issues have been adjudicated in the Indian context.
Free Riding or Fair Use?
Initially, only private enterprises recognised the commercial value of accumulating sports data. The sports data which was collected by private enterprises was then sold to media houses, sports betting companies, etc. Later on, sporting bodies realised the marketability of sports data and tried to establish exclusivity over it. Private companies whose business model was based on collecting and using sports data resisted this attempt and questioned whether an exclusive ownership right can be exercised over real-time sports data. The practices relating to filming and streaming of live events from the stadium can be restricted by the rules set out by the owner of a sporting venue or a sporting body which enjoys possession of the venue by virtue of a contract. This is called the ‘house right’ of event organisers which allows them to restrict access to the sports venue based on certain conditions which includes broadcasting rights of the event. This position was further clarified by the European Court of Justice in Premier League v. QC Leisure wherein the exclusivity of the event organisers over the audio-visual production and recording of sporting events was upheld. However, the situation becomes more complex when live broadcasts or events are simply observed to generate and report certain data. Such a situation arose in the United States in 1919 in the case of International News Service (INS) v. Associated Press (AP). The case involved the plaintiff – AP’s reporting from the European battlefield of World War I which was subsequently repackaged and sold by the defendant. The Supreme Court, noting the competitive interests of the parties, held that the defendant was misappropriating the news originally gathered by the plaintiff and was ‘endeavouring to reap where it has not sown’. A near identical situation arose in a sporting context in the case of NBA v. Motorola. Here, a sports data provider called STATS collected sports data from basketball matches conducted by the NBA and sold this information to Motorola which further sold it to customers of its sports information service. NBA tried to invoke the logic of INS v. AP by alleging that STATS and NBA were ‘free riding’ on its services and misappropriating time-sensitive information generated at its expense. The court, while rejecting the claims of the plaintiff, held that since there was no retransmission of broadcast but only a reproduction of facts, it cannot be said to violate NBA’s copyright. Moreover, the data collection and distribution of game data was being done by STATS at its own expense involving its own labour and skill. A distinction to this logic was drawn in Morris Communications Corp. v. PGA Tour wherein the PGA had developed its own Real–Time Scoring System (‘RTSS’) for online publication of live scores of its golf matches. It was alleged by Morris that this system was anti-competitive as media companies were only allowed to access this system after a delay of 30 minutes. The court rejected the claims of Morris and held that since the RTTS was PGA’s product, it was not obligated to grant third parties access to it. Although this judgment seems in conflict with the STATS case, it actually establishes a fine distinction in cases where the event owner refines sports data and generates a marketable end product. In such a scenario the product may be licensed to third parties subject to certain conditions.
Indian Context: Rejection of the ‘hot news doctrine’
Similar questions with regards to ownership of event data were raised in Star India v. Akuate Internet Services (2013). In 2012, Star had acquired exclusive broadcasting rights from the BCCI. It filed a suit alleging that companies like Cricbuzz and Idea Cellular, by offering live score updates through SMS, were monetising event data which was under Star’s exclusive ownership. They relied on the ‘hot-news doctrine’ and argued that match scores were of commercial value only for a short period of time. Thus, companies providing ball-by-ball reporting were making unfair gains at the expense of Star. The Delhi High Court initially accepted this argument and imposed a 15-minute time lag for live score updates. However, in an appeal to a division bench of the Delhi HC this decision was reversed. It held that the ‘hot news’ doctrine had evolved from its initial application in the INS case to now include cases where the parties were direct competitors. Since, BCCI and STAR did not provide SMS services to consumers it cannot be construed as a direct competitor. Further, the court held that it could not create a right over event data for the organisers when no such right existed in the statute books. The case then went on to the Supreme Court which granted an injunction against live SMS updates. This was done by calculating the risk of damage that may accrue due to continued infringement of broadcaster’s rights and balancing it with the risk of damage that may accrue to companies that provided subscription live updates. The case is still pending before the Supreme Court.
Foreign Courts in the US and EU have conclusively dealt with the issue of ownership of event data in sports. There seems to be no restriction on private companies offering analytics and live reporting to fans and such services cannot be deemed as ‘free riding’ at the expense of the sporting body or broadcaster. Even though in India, there are no exclusive ownership rights over event data, the application of the ‘hot news’ doctrine raises valid legal questions about live ball-by-ball reporting. For the time being these questions in the Indian context remain unanswered. Legal issues aside, there are also ethical issues related to increased use of analytics in sports. Sport is not just any other commercial activity; it is a cultural force that thrives off of its unpredictability. Whether the increased commodification of sports contributes to its development or is contrarian to its very nature are questions that must be engaged with constantly.