The UK High Court has recently looked at how a valuable data-set – consisting of horse-racing data – might be protected by IP rights or the law of confidential information. The case will be interesting for any business that owns or uses valuable data assets, and shows how breach of confidence can be relevant where traditional IP rights might leave gaps in protection.

The facts of the dispute were complex but involved the commercial rights to use data relating to betting odds and raceday information (like weather conditions). Various racecourses had granted an exclusive licence to the claimant to collate and sell that data to bookmakers. The defendant was providing similar data to bookmakers. The claimant argued that there had been a breach of copyright in its data, a breach of its database right and a breach of confidence. The High Court decided the following.

- There was no copyright in the betting odds, which were created by an algorithm and involved only ‘routine work’ – there was insufficient skill and judgement in creating the betting odds to meet the test for copyright. Even if there had been copyright protection, there was no infringement, because the defendant hadn’t copied the claimant’s betting odds, but merely moved its own odds so that they were closer to them.

- There had been no breach of the claimant’s database right in the betting odds. The defendant had merely consulted the claimant’s database – they had not ‘extracted’ or ‘re-utilised’ (which, under the relevant legislation, means making available to the public) data from it, as required by the EU database law. The court also referred to an ECJ decision that extracting several insubstantial parts of a database was infringement only if those parts added up to a substantial part – this was not the case here.

- There had been a breach of confidence in the raceday information. Information about the weather conditions etc was commercially valuable and the owners of the racecourses had the right to decide who could use that data. Interestingly, the court said that ‘the Raceday Data is not confidential because it is of an inherently confidential nature, but because there is a substantial commercial value in the information’. The fact that the claimant was willing to pay a substantial sum for the exclusive right to disseminate the data was a strong indication that the data was confidential.

 As businesses build up increasingly valuable data-sets, they will want to know that the law will protect their investment. This decision suggests that traditional IP rights might not be enough – although the court’s flexible approach to the law of confidence might provide some reassurance. This issue will only intensify as we see increased use of AI to create valuable content. We’ll probably see legal changes in this area at some point – in the meantime, businesses should ensure that they have well-drafted contracts in place to help fill the gaps left by the current law.