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By James Love, Consumer Project on Technology, 11/12/96
[Note: There have been substantial and ongoing changes in the U.S.
position on this matter since this was written. For the latest info
contact CPT at the address at the end of this file. -- LLL Staff]
Sports fans in the United States will be surprised to learn that U.S.
Government officials are pressing for the adoption of an International
treaty that will (if enacted) significantly change the ways sports
statistics are controlled and disseminated. The treaty isn't
specifically directed at sports statistics--it is a much broader attempt
to create a new property right in facts and other data now in the public
domain--but it will have an enormous impact on the legal rights
exercised by the National Football League (NFL), Major League Baseball
(MLB), the National Basketball Association (NBA), the National Hockey
League (NHL) and virtually all other professional or amateur athletic
leagues. (The same treaty will radically affect the way that stock
prices, weather data, train schedules, data from AIDS research and other
facts are controlled, but this note will focus on the issue of sports
statistics, a topic that illustrates the broad impact of the treaty).
This comes at the same time the NBA and other sports franchises are
stepping up their efforts to control the real-time dissemination of
sports statistics through the Internet or with wireless paging devices.
The treaty, however, addresses different and much more fundamental
issues regarding ownership of information.
If the treaty is approved and implemented, sports leagues will have far
broader powers to dictate the terms and conditions under which sport
statistics are reported and disseminated. Nolan Ryan's Earned Run
Average (ERA), the number of tackles or quarterback sacks by Lawrence
Taylor, Cal Ripken's career batting average, Bobby Hull's career
assists, the number of steals by your favorite NBA point guard, and
similar information will be "owned" by sports leagues. According to the
proposed treaty (and legislation introduced in the 104th Congress to
implement the treaty), the NFL, NBA, NHL and MLB will have the right to
prevent anyone from publishing these and other statistics without
express permission from the sports league. This will include the right
to control access to the historical archives of sports statistics, and
even to dictate who can publish the box scores from a game or print a
pitcher's ERA on the back of a baseball card.
The proposals for a new legal environment for publishing facts are
outlined in a draft treaty on "databases" that will be considered at a
December 1996 meeting of the World Intellectual Property Organization
(WIPO), in Geneva, Switzerland. The proposal would require the United
States and other countries to create a new property right for public
domain materials. "Texts, sounds, images, numbers, facts, or data
representing any other matter or substance," will be protected. (See the
appendix for a more complete definition).
The treaty seeks, for the first time, to permit firms to "own" facts
they gather, and to restrict and control the redissemination of those
facts. The new property right would lie outside (and on top) of the
copyright laws, and create an entirely new and untested form of
regulation that would radically change the public's current rights to
use and disseminate facts and statistics. American University Law
Professor Peter Jaszi recently said the treaty represents "the end of
the public domain."
Copies of the proposed treaty, a federal register notice asking for
public comment, and independent commentary can be found at:
WHO IS PUSHING FOR THE DATABASE TREATY?
In 1991, the US Supreme Court ruled (in the Feist decision) that the
facts from a telephone "White Pages" directory of names, addresses and
phone numbers were not protected under the copyright laws, and that in
general, "facts" could not be copyrighted by anyone. The Feist decision
alarmed several large database vendors, who crafted this new "sui
generis" property right that would protect facts, and just about
everything else. (The vendors have already succeeded in obtaining a
directive on the database proposal from the European Union, although no
European country has yet passed legislation to implement the treaty).
The most active supporter of this new property right is West Publishing,
the Canadian legal publisher. A West Publishing employee chairs a key
ABA subcommittee which wrote a favorable report on the treaty. A number
of very large British and Dutch database vendors are also lobbying hard
for the treaty.
West wants the new property right to protect the "page numbers" and
"corrections" it adds to the judicial opinions it publishes in paper
bound books. Telephone companies want to protect the names, addresses
and telephone numbers they publish, and other database vendors want to
protect scientific data or other non-copyrighted government information
they publish. In seeking to protect these items, the treaty was written
to stamp "owned by" labels on a vast sea of information now in the
public domain. Copyright experts J.H. Reichman and Pamela Samuelson say
it is the "least balanced and most potentially anti- competitive
intellectual property rights ever created."
There is an active debate within the Clinton Administration over the
proposed treaty. Bruce Lehman, the controversial head of the Patent and
Trademark Office (PTO) is pushing for adoption of the treaty this
December. Most administration officials don't have a clue what the
database treaty does. Some people think it is a minor tinkering with the
current copyright law. No one in the government has sought to understand
the significance of the proposal in terms of the new rights to "own"
facts, and until recently no one was aware that the treaty was so broad
that it would change the way sports or financial statistics were
HOW WILL THE TREATY WORK?
In Feist, the Supreme Court noted:
(a) Article I, Sec. 8, cl. 8, of the Constitution mandates originality
as a prerequisite or copyright protection. The constitutional
requirement necessitates independent creation plus a modicum of
creativity. Since facts do not owe their origin to an act of
authorship, they are not original and, thus, are not copyrightable.
Since facts cannot be copyrighted, the supporters of the treaty have
framed this as a new "sui generis" property right, which will have a
separate statutory framework. "Originality" or "authorship" will not be
required. "Texts, sounds, images, numbers, facts, or data representing
any other matter or substance," will be protected. The information can
be stored in "all forms or media now known or later developed." Both
published and confidential information will be covered. The only thing
required is a "substantial investment in the collection, assembly,
verification, organization or presentation of the contents" of the
protected work. The "rightholder" will have extremely broad powers to
"authorize or prohibit the extraction or utilization" of the information
from the protected database.
It takes a while for the implications of this new system to sink in.
Some facts can be independently gathered, like the number of baseball
games played in a year, the winners or losers of a tennis match, or the
scores of a football game. For these data, there may exist several
sources for the data. However, other facts are, by their very nature,
only available from a single source, and will be controlled by
monopolies. For example, baseball leagues employ scorekeepers who
determine if a batter is credited with a hit or if a fielder committed
an error, if a hit is reported as a single or double, or if an errant
pitch is scored as a wild pitch or a passed ball. The league makes a
"substantial investment" in the collection and maintenance of this data,
which it disseminates to the press, and also stores and maintains in a
database, through an arrangement with the Elias Sports Bureau. These
data cannot be independently collected - and under the proposed database
treaty, the league would own the facts themselves, and could dictate the
terms under which these facts are published or redisseminated.
The NFL employs four persons who keep track of the play-by- play action
for each game. They write up four separate reports, which are used to
create a single official "box score." The final product is supervised by
the Elias Sports Bureau, as a "work for hire" product, which is owned by
the NFL. The NFL box score is very detailed, and includes analysis of
each play. It records the league's statistics for the number of yards
gained (or lost) on each play, who is credited with a tackle or a
quarterback sack, or the number return yards on a kickoff or pass
interception, and many other items. While someone who attended a
football game could make an independent estimate of these items, it
would likely be different from the official statistics, due to the
inherent difficulty in measuring or assigning credit for performance on
the field. The NFL's box score is given to the press, which uses the
data to create its own news media reports.
An attorney who represents the National Football League (NFL) told us
that the NFL has an interest in ensuring that there is an "official"
source of the statistics, which are gathered with an appropriate
standard of care and that the NFL "protects the official designation" of
its statistics. These data are used for making decisions on the Hall of
Fame, and to create special reports and information products, which the
NFL provides to third parties, often for a fee.
Virtually all of the major league sports leagues have some system for
creating statistics, disseminating the information to the press, storing
the historical data, and marketing the statistics commercially. Major
League Baseball, the NFL, and the NBA work with Elias, while the NHL has
its own in-house system. There is little doubt that the process by which
these statistics are generated will qualify for protection, under the
treaty's minimal requirement that the league demonstrate it has made a
"substantial investment in the collection, assembly, verification,
organization or presentation of the contents" of the database. The work-
for-hire "media sheets," "box scores," and other press handouts which
report the statistics would be considered database elements, and
reporting of statistics from these products would be subject to an
entirely new type of licensing and control by the leagues which is far
stronger than that which exists under copyright law. (See appendix).
The leagues have various methods of selling their "official" branded
statistics. There are also many competitors who build databases from a
variety of sources, including the published box scores that appear in
daily newspapers, and probably the books and reports published by the
leagues. The leagues do not currently assert "ownership" in the
statistics directly, even as they try to prevent others from referring
to the data as "official" statistics, but they are trying to prevent
real time reporting of game statistics and situations over Internet or
The NBA told us that it permits accredited journalists to report scores
from NBA games three times each quarter, and that it considers the
minute to minute reports a "misappropriation" of its ability to sell
performance rights for the event. The NFL takes a similar position with
respect to its games. STATS, Inc. is a firm that provides real time
scores and play-by-play descriptors to a variety of online and wireless
information services. According to the NFL and the NBA, STATS, Inc.
hires people to watch television broadcasts of the games, and type the
play-by-play information into personal computers, which are linked to
the STATS, Inc. computer network services. An example of this type of
service that uses STATS, Inc. as a supplier of statistics is Instant
Baseball, available at http://www.InstantSports.com/. Disputes over the
real time Internet broadcasts of game situations and scores could well
end up before the U.S. Supreme Court, as a test of the first amendment.
In the NBA case involving Motorola, STATS, Inc. and America Online, the
NFL and other leagues have filed amicus briefs in support of the NBA
position, while the New York Times has filed a brief in support of
Motorola, STATS, Inc. and America Online.
About two weeks ago the NBA discovered HR 3531, a version of the
database protection proposal that was introduced in the U.S. Congress
last spring. The NBA is looking at HR 3531 to see if it would provide a
legislative remedy for their dispute with Motorola, et. al. (Like the
other leagues, the NBA wasn't aware of the database treaty until last
At present, none of the leagues currently prevent anyone from publishing
statistics after a game is over, because it is assumed that the
statistics (facts) are in the public domain, once the broadcasts are
over. But this would likely change if the database treaty is enacted.
One league official told me, "no matter how appalled I am at this
proposal personally, as a civil libertarian, my client may have
interests as a rightholder that it will want to exercise." A lawyer for
the NFL said that the NFL might not want to do anything--he thought the
free dissemination of statistics brought its own benefits, in terms of
increased fan interest. But he also said, the treaty would allow the NFL
to "do quite a bit of stuff," in terms of new licensing arrangements or
other ventures, if it wanted to.
As a "sui generis" property right, the database proposal does not
incorporate the fair use principles from copyright that reporters and
value-added publishers often take for granted. The leagues would be able
to require license to publish box scores or other statistics in any
media. One can imagine a world where the leagues wouldn't require
licensing of box scores to print based periodicals like daily
newspapers, but that a much more controlled regimen would evolve on the
Internet. The leagues could require licensing of box scores and other
statistics for Internet publications, or linking to the leagues own web
sites, such as www.nba.com, www.nfl.com, or www.nhl.com. The Internet
is, after all, a very easy place to locate and police violations of
intellectual property rights--through a simple AltaVista search. This
would also likely lead to major changes in the market for baseball (and
other sports) cards, which typically feature key statistics on the flip
side of the card. The new database extraction rights would prohibit any
unauthorized extraction or reuse of data that had economic value to the
leagues (See discussion in Appendix).
Of course, this treaty deals with a lot more than sports statistics. It
will do the same thing for information on stock prices that is generated
by a stock exchange. It will radically change the market for weather
information. There is concern in Europe over the control of train
schedules. Private Schools could use the new data extraction right to
prevent unauthorized publication of data about its student's test scores
or post graduate placement statistics (both generated from a database).
The treaty would radically change the rights to use information from
gene sequencing, or hospital cost-benefit studies. It will obviously do
much much more.
Since I have tried to keep this note simple, a lot has been left out.
But consider this: The treaty, which was designed to protect West
Publishing's legal reporters, has been written so broadly that it will
define even the daily newspaper as a "database" element. Since the new
property right is additive to all rights claimed under copyright, every
publisher will claim the additional protection, by saying each issue of
the newspaper is a database element. (Virtually all newspapers today are
archived in databases). The consequences of this are astounding, since
every fact and article in every newspaper will have the new stronger
form of protection, which will not include any public fair use rights.
You might ask your member of Congress what the heck is going on with the
treaty, and see if they understand it.
Extracts from James Love, "A Primer On The Proposed WIPO Treaty On
Database Extraction Rights That Will Be Considered In December 1996",
October 29, 1996, (http://www.essential.org/cpt/ip/cpt- dbcom.html)
WHAT IS A DATABASE? WHAT ISN'T A DATABASE?
The treaty would protect "any database that represents a substantial
investment in the collection, assembly, verification, organization or
presentation of the contents of the database." This term should be
understood "to include collections of literary, musical or audiovisual
works or any other kind of works, or collections of other materials such
as texts, sounds, images, numbers, facts, or data representing any other
matter or substance" and "may contain collections of expressions of
folklore." The "protection shall be granted to databases irrespective of
the form or medium in which they are embodied. Protection extends to
databases in both electronic and non- electronic form" and "embraces all
forms or media now known or later developed. . . Protection shall be
granted to databases regardless of whether they are made available to
the public. This means that databases that are made generally available
to the public, commercially or otherwise, as well as databases that
remain within the exclusive possession and control of their developers
enjoy protection on the same footing."
WHAT ARE EXTRACTION AND UTILIZATION RIGHTS?
"The maker of a database eligible for protection under this Treaty shall
have the right to authorize or prohibit the extraction or utilization of
its contents." What is "extraction"? Extraction is defined as, "the
permanent or temporary transfer of all or a substantial part of the
contents of a database to another medium by any means or in any form."
"Extraction . . . is a synonym for `copying' or `reproduction' . . . by
`any means' or `any form' that is now known or later developed."
"Utilization" is defined as "making available to the public all or a
substantial part of the contents of a database by any means, including
by the distribution of copies, by renting, or by on- line or other forms
of transmission," including the right to control the use of the data "at
a time individually chosen by each member of the public."
WHAT IS A "SUBSTANTIAL PART" OF THE DATABASE?
The treaty sets out tests for determining if an extraction is
"substantial," and these tests are both highly anticompetitive, and
extremely broad in scope.
The "substantiality" of a portion of the database is assessed against
the "value of the database," and considers "qualitative and quantitative
aspects," noting that "neither aspect is more important than the other .
. . This assessment may also take into account the diminution in market
value that may result from the use of the portion, including the added
risk that the investment in the database will not be recoverable. It may
even include an assessment of whether a new product using the portion
could serve as a commercial substitute for the original, diminishing the
market for the original."
Then the treaty adds that a "substantial part" means any portion of the
database, "including an accumulation of small portions . . . In
practice, repeated or systematic use of small portions of the contents
of a database may have the same effect as extraction or utilization of a
large, or substantial, part of the contents of the database."
In the U.S. implementing legislation, the only types of data use that
would not be regulated would be "insubstantial" parts, "whose
extraction, use or reuse does not diminish the value of the database,
conflict with a normal exploitation of the database or adversely affect
the actual or potential market for the database." Under this language, a
database owner could say that it might in the future want to charge for
each transmission of a fact or an element of a database as part of its
"normal exploitation" of the database. With the Internet and digital
cash this claim is likely to be made. The public would not have "fair
use" rights, since fair use is only defined in matters involving
FOR HOW LONG? 15 YEARS, 25 YEARS, OR FOREVER?
The Treaty would require a minimum term of protection (15 years in the
EU proposal, and 25 in the United States proposal) for the database. But
this is extended each time the database is revised or enhanced.
According to the draft treaty, "any substantial change to the database,
evaluated qualitatively or quantitatively, including any substantial
change resulting from the accumulation of successive additions,
deletions, verifications, modifications in organization or presentation,
or other alterations, which constitute a new substantial investment,
shall qualify the database resulting from such investment for its own
term of protection."
The provision on revisions raises the specter that protection for many
databases will be perpetual. This could indeed be the case if the
original versions of the database are only "licensed" by the vendor for
a limited period of time, so that the only available versions would be
the new ones, which would have a new term of protection. (Database
vendors write these restricted use licenses now).
First published in INFO-POLICY-NOTES
James Love is Director of the Consumer Project on Technology, one of
Ralph Nader's pinko plots [just kidding], and can be reached at:
202/387-8030; [email protected]
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