TabCorp's embarrassing backdown in its pursuit of Sportsbet over copyright on totalizator odds was supposedly caused by the recent High Court decision in the Ice TV case.

That case has rewritten the rules about what constitutes an original work in Australian copyright law. One of its outcomes is that re-arranging an existing body of facts and presenting them in a different way does not necessarily breach copyright claimed by the owner of the original presentation.

This is especially the case the when the re-arranged information has other data added to it by the person supposedly breaching the original copyright.

In the TabCorp case against Sportsbet, it is interesting that it was only the NSW TAB subsidiary which chose to take the legal action. This is because the NSW tote pool is the only one which is owned by purely one party.

Any copyright in tote odds of the SuperTAB pool would necessarily be shared by the Tasmanian, Victorian, ACT and WA TAB's so any action alleging breach of copyright would presumably need the support of all these other bodies.

Even in the absence of the ICE TV judgement, TAB NSW would always have had problems proving its case.

Firstly, the copying that Sportsbet was supposed to have done was of the TAB NSW approximate odds prior to the jump. As we all know, these are computer generated meaning that they are not the product of an original creative work by an individual.

Secondly, whatever use Sportsbet is making of them is as a price comparator, enabling punters using its web site to decide whether Sportsbet is offering a better price than the various TAB's.

As far as I know, offering to match or better the price of a competitor is not a breach of copyright. If prices were copyright, commercial competition could not exist.

Thirdly, any TAB NSW approximate odds displayed by Sportsbet are necessarily lagged. That is they are purely historic and cannot reflect the real odds at that instant because they are changing all the time. Any copyright that TAB NSW claims in approximate dividends is a nonsense because the allegedly copyright work is different every second.

Fourth and perhaps most importantly, the final dividends are used by Sportsbet roughly one third of the time in calculating its "best of 3 totes" dividend. By the time it does this, these odds have been published freely by TAB NSW and the media and become an historical fact. They are as copyrightable at that point as the winner of the last election. Facts cannot be copyright.

While there may be no direct parallel between TabCorp's decision to withdraw from its case against Sportingbet and the ongoing dispute between Racing NSW, Betfair and Sportingbet, the omens are ominous for those trying to preserve the old industry funding model.

Sportsbet, now backed by Irish betting giant Paddy Power, has fought Racing Victoria to a standstill and now trounced TabCorp. Full of confidence, the probability is that it will make a mess of Racing NSW, which has lost every step so far in the case that Sportsbet has brought against it.

Copyright has always been touted as the industry's secret weapon of mass destruction to attack the so called freeloaders in Betfair and the corporate bookmakers.

It has always puzzled me, that if copyright was so certain and so valuable, why has it been necessary for the racing industry to lean on state governments to legislate special privileges for race field information uniquely amongst all intellectual property?

Surely by now after a nearly a decade of blathering on about how much race fields were worth, a racing administrator somewhere, or maybe all of them together would have brought a Federal Court case to prove once and for all the value denied to the industry by the so called free riders?

Isn't it rather more the reality that we already have all the evidence in front of us to say how much race fields are worth?

In Victoria and other states, non-TAB wagering providers are happily paying 10% of gross profits (15% in Victoria for Spring Carnival races). They are also willingly tipping in millions of dollars in racing sponsorships.

In NSW, 1.5% of turnover (30% of gross profits) is proving so unpopular that legal action is underway. Millions of dollars are being wasted by the industry on fighting the litigation and zero sponsorship dollars are coming in because the promotional rights have been sold to TabCorp for a song.

Clearly there is a sweet spot somewhere between 10% and 30% of gross profit that would be acceptable at least to the corporates. It may well be that the Victorian model where higher class racing is charged at a premium price is the way to go nationally.

The problem for racing especially in NSW, is that it has opened the floodgates in terms of each state charging the other for the use of its racing for wagering. With an increasingly sub-standard product, there is very little about NSW racing which could command a premium from any wagering operator.

Historically, it has been the biggest beneficiary from free riding on other state's racing. Even now, Racing NSW is propping up its prizemoney by using a slush fund of money it received during the EI crisis from wagering on Victorian and other racing.

Those funds pillaged from the rest of Australia dwarf those that it is claiming from corporate bookmakers. Unfortunately NSW will never be able to build another reserve like it.

The real reason that the squeals are coming out of NSW right now is that it can no longer rely on other states to fund its racing. Take out of the so called $30 million "race fields" war chest what it has to refund to Victoria and the rest and there will be a lot less to play with.