ACHIEVING A FAIR RETURN TO RACING INTELLECTUAL PROPERTY RIGHTS 1

Exclusive rights framework Creator of intellectual property can reap fruits of investment Investment is made in intellectual property creation Public benefit PART 1 – Economic theory and intellectual property law Intellectual Property Rights Rationale Paris 2012 IPR & A FAIR SHARE 2

ExcludableNon-excludable RivalrousPrivate GoodCommon Pool Good Non-rivalrousClub Good Toll Good Public Good Paris 2012 IPR & A FAIR SHARE PART 1 – Economic theory and intellectual property law 3

PART II – Existing Intellectual Property Law Q1 – Does the existing IP regime adequately protect racing against free riding? Q2 – Are there other options for achieving an exclusive rights framework? Paris 2012 IPR & A FAIR SHARE 4

PART IIA -- Copyright 5 Paris 2012 IPR & A FAIR SHARE Copyright protection YES NO Expression of facts or information Facts or information

6 Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright

Copyright – Preparatory Steps 1.Catalogue process 2.Written assignment 3.Written acknowledgement 4.Copyright notices Calendar and Race Program Nominations Lists Weights Lists Progressive Acceptance Lists Acceptance Lists Final Fields Race books Form guides published in newspaper and elsewhere Race results 7 Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright

8 Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright

Copyright – Infringement A.Use ≠ Reproduction B.Reproduction of a “substantial part” 9 Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright

10 Paris 2012 IPR & A FAIR SHARE PART IIA -- Copyright

PART IIB – Sui generis database right 11 Paris 2012 IPR & A FAIR SHARE

PART IIB – Sui generis database right 12 Paris 2012 IPR & A FAIR SHARE

13 PART IIB – Sui generis database right Paris 2012 IPR & A FAIR SHARE Substantial investment in the obtaining, verification or presentation of database contents Sui generis database right

BHB v William Hill Fixtures Marketing 14 PART IIB – Sui generis database right Paris 2012 IPR & A FAIR SHARE Sui generis database right Content created “in-house”

PART IIC – Harmonized copyright database Harmonized copyright protection to original database – can it protect sporting fixture lists? 15 Paris 2012 IPR & A FAIR SHARE Football DataCo v. Yahoo European Court of Justice High Court Court of Appeal

PART III – Race fields legislation as an alternative 16 Paris 2012 IPR & A FAIR SHARE Evolution Stage IARBAustralian Racing Ministers Stage IIARBAustralian Racing Ministers Product fee principle Race fields legislation mechanism

17 PART III – Race fields legislation as an alternative Paris 2012 IPR & A FAIR SHARE Evolution Stage IIIFulcrum of legislation changed from “publish to “use" Stage IVHigh Court upholds constitutional validity

Offence to use in Australia “or elsewhere” Crimes Act Extradition -Decision to request extradition – Minister for Justice & Customs -Maximum penalty of ≥12 months -Dual criminality 18 PART III – Race fields legislation as an alternative Paris 2012 IPR & A FAIR SHARE The long arm of the law?

19 PART III – Race fields legislation as an alternative Paris 2012 The long arm of the law? Paris 2012 IPR & A FAIR SHARE

1.Free trade & open competition 2.Is race fields legislation possible in Europe? 3.Ripple effects 20 PART III – Race fields legislation as an alternative Other considerations Paris 2012 IPR & A FAIR SHARE

PART IV – Conclusions 1.Sui generis database right is a dead letter for racing. 2.Scope for Europe to use database copyright will be made clearer by English Court of Appeal decision in Football Dataco. 3.Outside Europe scope for copyright to be used against free riding wagering operators potentially exists, but the tests applied vary around the world. 21 Paris 2012 IPR & A FAIR SHARE

StrengthsWeaknesses Copyright Legal framework already exists Whether copyright subsists in race fields is unclear – test cases needed Racing organiser can initiate enforcement – not reliant on government regulator that may be unwilling to expend resources on a prosecution Infringement depends on reproducing: - Bookmaker taking bets over telephone without publishing race field does not infringe - Bookmaker that reproduces only slivers of the race field may not infringe Marginal utility where wagering operator is external Race fields “use” is sufficientRequires new law to be enacted Deterrent effect of criminal offence Race organizer cannot initiate enforcement – is reliant on government regulator that may be unwilling to expend resources on presentation Effectiveness is reduced where wagering operator is external 22 PART IV – Conclusions Paris 2012 IPR & A FAIR SHARE

PART V – Developing a strategy 1.Identify interested IFHA members. 2.Scope the issues in each country. 3.Develop template(s). 4.IFHA advocacy. 23