The decision by Australia's High Court yesterday in favour of IceTV against Channel Nine, pretty well destroys any idea that the racing industry can pursue wagering operators for copyright payments for using race fields.

Nine sued IceTV over an alleged copyright breach when IceTV compiled program guides to Channel Nine broadcasts, claiming copyright in the dates, times and program details of its schedule.

In a lengthy judgement, the High Court held that the original judgement in the Federal Court case in favour of IceTV should stand but in the process rewrote the legal precedents in Australia to do with copyright in databases.

The main Australian case was the so called Desktop Marketing case, where a small company employed workers in the Philippines to reproduce all Australian phone books on CD.

Telstra took Desktop Marketing to court claiming copyright in its phone books and the High Court agreed then that the substantial work and expense in compiling the phone books gave Telstra copyright in them.

The latest case sees the High Court concentrate more on whether the alleged copyright infringer reproduces a "substantial part" of the original work and then uses it in competition with the original author.

For the racing industry, the issue is that wagering operators do not use a substantial part of the racing information over which the industry claims copyright. The mere use of a horse's name and saddlecloth number, neither of which are actually owned by the racing industry, cannot constitute a substantial part of a database which includes weights, barrier positions, trainer names, jockey names and historical form.

The High Court held that the business of Channel Nine was not producing program guides as did IceTV, but running a TV station with the aim of making a profit from advertising.

The fact that IceTV clients could use its program guide to skip watching ads in pre-recorded programs was Nine's main objection but this did not give them the right to prevent IceTV from compiling the guides.

Similarly, and perhaps more importantly, racing information is compiled by the racing industry for the orderly conduct of racing. It may incidentally facilitate the TAB betting on those same races, but the industry does does not actually run the wagering operation and there are other reasons to run races than people betting on them.

The High Court was also impressed by the fact that IceTV did not source any of its information directly from Channel Nine. Most wagering operators would not source their race field information from racing bodies directly.

In fact, even when race fields legislation is in place, requiring wagering operators to pay a levy for the use of race fields, the industry does not provide them. Clearly it does not see the need to, proving that the data is readily available from other sources.

If there is any copyright in race fields data at all, surely it is copyright those third party newspapers and form providers, rather than the racing industry.

While not a part of the High Court judgement, the other issue that should be bothering racing authorities about the IceTV judgement is that it well and truly cements Federal copyright legislation as the law which decides the basis of ownership of intellectual property.

As Federal law trumps state law every time, one wonders how long it will take for a wagering operator to challenge a state's Race Fields legislation on the basis that a state is attempting to legislate over data rights?

Cyberhorse 2021 Bill Saunders Published 23/04/09