Sports Statistics to Be Regulated Under WIPO Treaty (fwd)
Steve Schear
azur at netcom.com
Mon Nov 11 08:39:54 PST 1996
>Date: Sun, 10 Nov 1996 11:30:41 -0600
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>Subject: Sports Statistics to Be Regulated Under WIPO Treaty (fwd)
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>INFORMATION POLICY NOTES
>NOVEMBER 10, 1996
>
> Government Proposes New Regulation of
> Sports Statistics and other "facts"
>
> James Love
> Consumer Project on Technology
> http://www.essential.org/cpt
> love at tap.org; 202/387-8030*
>
>November 10, 1996
>
>This issue of INFO-POLICY-NOTES was formatted in 12 point
>courier, with 1 inch margins. An HTML version of this note is
>available at http://www.essential.org/cpt/ip/wipo-sports.html
>
>
> INTRODUCTION
>
> 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. [See, for example,
>http://www.news.com/News/Item/0,4,3208,00.html]. 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. [See
>www.public-domain.org/database/database.html] 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:
>
>http://www.public-domain.org/database/database.html
>
>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
>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 what 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."
>[http://ksgwww.harvard.edu/iip/reisamda.html]
>
>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 official 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
>controlled.
>
> 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.
> [From the Syllabus of the opinion, at
> http://www.law.cornell.edu/supct/classics/499_340v.htm]
>
>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 insuring 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 and the NBA work
>with Elias, while the NBA and the NHL have their own in-house
>system. There is little doubt 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
>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
>paging technologies.
>
>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 week.)
>
>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.nba.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 extract rights would prohibit any unauthorized
>extraction or reuse of data that had economic value to the
>leagues (See discussion in Appendix).
>
>WHAT CAN YOU DO?
>
>The government is taking comments on the database treaty
>through November 22, 1996. If you don't think the government
>should rush into a new regulatory scheme for sports statistics,
>let them know. You can email your comments to:
>diploconf at uspto.gov.
>
>If you want to know more about his proposal, check out
>http://www.public-domain.org/database/database.html.
>
>PS
>
>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 over 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
>to all rights claimed under copyright, every publisher will claim
>the additional protection, by saying each issue of the newpaper
>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.
>
> James Love, Director
> Consumer Project on Technology
> 202/387-8030; love at tap.org
>
>* I will be out of the U.S. from November 11 to November 20,
>attending a conference on the impact of international trade
>agreements on intellectual property rights in New Delhi, India,
>and will be hard to reach before the 21st.
>
>
>Two law professors who have studied the treaty extensively are:
>
>Professor Pamela Samuelson, University of California at Berkeley,
>Voice (510)642-6775, pam at sims.berkeley.edu
>
>Professor Peter Jaszi, American University, School of Law, Voice
>(202) 885-2600, pjaszi at wcl.american.edu
>
>
>
>
> APPENDIX
>-----------------------------------------------------------------
>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 US 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
>copyright.
>
>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].
>
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