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Thursday, July 3, 2014

Try bombed - footy injunction application fails

by Stephanie Essey, Lawyer

In a recent case, Sports Data, the NRL's former statistics supplier, sought an interlocutory injunction against what it saw as the misuse of copyright in its database and the confidential information in it by Prozone, NRL's new statistics supplier.

Sports Data had developed a database populated with fields which set out events in NRL games that were to be recorded.  Sports Data alleged that Prozone copied confidential input criteria from the Sports Data database without consent in the process of creating its own event template.  Sports Data also claimed that Prozone infringed its copyright in the input criteria by reproducing a substantial part of its copyright work in the Rugby League Definitions Guide 2014.

Big forwards out of gas: weak confidentiality case
The facts showed that Sports Data had failed to adequately particularise the information it claimed to be confidential.  Sports Data asserted that the entire compilation of events in the database constituted confidential information, but his Honour found that it was not possible to infer that Prozone had used the whole compilation rather than particular items contained within it.

Further, Sports Data did not succeed in proving that the information had the necessary quality of confidentiality.  While the database contained a notice asserting confidentiality, it could be accessed by customers (including NRL clubs) without their viewing that notice.  Although his Honour drew the prima facie inference that Prozone had indeed received some information about Sports Data's input criteria, the circumstances in which Prozone received the information remained unclear to the court – most importantly, whether those circumstances identified an obligation of confidence.  A purported notice of confidentiality provided by letter to Prozone was ineffective as it merely asserted copyright and did so at least a month after Prozone had received the information.

Full credit to the other side tonight: weak copyright case
His Honour found that Sports Data had, at best, demonstrated a very weak prima facie case of copyright infringement.

Wigney J emphasised the ambiguity in Sports Data's definition of the alleged copyright work; it was unclear whether the work comprised the input criteria (simply a list of rugby league event descriptions) or particular tables or fields from the database.  Ultimately, his Honour determined that the work constituted four tables drawn from the 50 tables comprising the database and that Sports Data employees had authored those tables, and there was enough mental effort and originality such that the work may have been eligible for copyright protection.

However, his Honour held that Sports Data had not established a prima facie case that Prozone had reproduced a substantial part of the copyright work.  The absence of a substantial objective similarity between Sports Data's compilation and Prozone's Guide (whether considered with respect to quality or quantity) was instrumental.  While some event descriptions had been reproduced, Sports Data had failed to demonstrate that the selection, structure and arrangement (which are critical when the work is simply a list of factual material) were substantially identical.  Wigney J was also unpersuaded by Sports Data's evidence regarding causation, due to the lack of evidence that Prozone had actually obtained and copied all or a substantial part of the copyright work.

Wigney J briefly considered whether extracts from a much larger work (here, four tables from 50) could legitimately comprise a copyright work.  In particular, his Honour expressed concern that allowing applicants to assert copyright in certain sections of a larger work might allow them to sidestep the substantiality requirement in an infringement claim.  His Honour found that it was not necessary to reach a conclusion on the question, but expressed the preliminary view that defining a copyright work in this manner might well prove impermissible at trial.

0 from 3
While it was strictly unnecessary to consider the balance of convenience, Wigney J addressed the arguments the parties had raised.  His Honour found that the balance of convenience did not fall in Sports Data's favour and that interlocutory relief would not have been awarded even if Sports Data had made out a prima facie case with regard to either of the causes of action.  The evidence led by Sports Data regarding its financial and business position was incomplete and therefore inconclusive, and his Honour reasoned that its position would be unlikely to be improved by the grant of the injunctions it sought. For instance, there was no evidence that the NRL clubs would seek to engage Sports Data's services again. For that reason, his Honour was not satisfied that damages would be an inadequate remedy for Sports Data or that Sports Data would suffer irreparable harm if interlocutory relief was not granted.

Furthermore, his Honour considered it possible that Prozone and its employees would suffer harm if an injunction rendered it unable to perform its obligations under its contract with the NRL. The NRL would also be inconvenienced as it would need to retain an alternative statistics provider.

Giving 110% on the field
  • Remember to carefully and specifically define the literary work in a copyright infringement claim. The decision also builds on case law addressing copyright in databases by emphasising the importance of proving substantial reproduction and causation (both of which can be influenced by the way the work is identified).
  • Flag the confidentiality of confidential information at the earliest possible opportunity (ideally when imparted).
  • Seek interlocutory relief in a timely manner.

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