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STATS, Inc. on WIPO Database Treaty and Sports Statistics
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Info-Policy-Notes - A newsletter available from listproc@tap.org
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INFORMATION POLICY NOTES
November 22, 1996
The following is a letter by STATS, Inc., a well known sports
statistics company. STATS, Inc. is the publisher of 11 annual
books on major sports, including such titles as the Major League
Handbook, the Pro Football Handbook and the Pro Basketball
Handbook. Stats, Inc. also supplies factual information to
Turner Sports, NBC, the AP, ESPN, Fox, America Online and
Motorola, among others. Stats, Inc. is also a current defendant
in a lawsuit with the NBA over the real time reporting on NBA
scores. The letter says the proposed WIPO database treaty
"presents a very serious threat to the news reporting and
analytical activities of STATS and other publishers and media
organizations." The letter says that the treaty could "have the
paradoxical effect of providing greater protection for factual
databases than copyright now affords to highly creative works."
They note that "STATS it itself a `database' proprietor. . .
Nonetheless, we have always believed that current law fully
protects our rights in those statistical collections against
misappropriation, and we have never felt the need for a new form
of protection. . . . the Proposed Treaty provides an unwise -
indeed, dangerous - solution to a non-existent problem. . . [and]
would disturb the traditional balance between private and public
interests developed over a century of copyright law."
James Love, CPT, love@tap.org; http://www.essential.org/cpt
The letter follows:
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html version of this letter will be posted at
http://www.public-domain.org/database/stats.html
SPORTS TEAM ANALYSIS AND TRACKING SYSTEMS, INC.
November __, 1996
EXPRESS MAIL
Commissioner of Patents and Trademarks
Box 4
Patent and Trademark Office
Washington, D.C. 20231
Attention: Ms. Carmen Guzman Lowrey
Associate Commissioner for Governmental
and International Affairs
Re: Basic Proposal for the Substantive Provisions of the
Treaty on Intellectual Property in Respect of Databases
Dear Ms. Lowrey
I am president of Sports Team Analysis and Tracking Systems,
Inc., which does business as STATS, Inc. We are writing in
response to the request for comments contained at 61 Fed. Reg.
54159 (Oct. 17, 1996) concerning the Basic Proposal for the
Substantive Provisions of the Treaty on Intellectual Property in
Respect of Databases, commonly known as the "Proposed Treaty for
the Sui Generis Protection of Databases" (the "Proposed Treaty"),
which is to be considered at the upcoming Diplomatic Conference
sponsored by the World Intellectual Property Organization.
The Proposed Treaty presents a very serious threat to the
news reporting and analytical activities of STATS and other
publishers and media organizations. It defines the
central term "database" far too broadly and lacks the traditional
protections for public uses of fact developed under copyright
law. The Proposed Treaty, if implemented by United States
legislation, will restrict the production of new creative works
which are based on analyzing statistics and other facts
traditionally in the public domain. We believe that the United
States delegation to the Diplomatic Conference should not support
the Proposed Treaty.
The Business of STATS
As a glance at any newspaper will prove, there is a tremendous
public thirst for knowledge about sports. STATS is in the
business of collecting and providing sports fans
and media organizations with analysis and information about the
sports, teams, and players they follow. The following are some
of STATS's current business activities:
a. STATS publishes 11 annual books on the major sports,
some of which are best-sellers in their field. These books
include the Major League Handbook and The Scouting Notebook for
major league baseball, the Pro Football Handbook and Pro Football
Revealed for NFL football, and the Pro Basketball Handbook for
NBA basketball. These books contain detailed analysis of
statistics on teams and players as well as articles discussing
performance and trends for the upcoming season.
b. STATS provides detailed factual information (including real-
time scores and statistics) and analysis of sports statistics to
many of the most important sports news organizations, including
Turner Sports, NBC Sports, the Associated Press, ESPN and Fox
Sports. These organizations in turn use STATS' information and
analysis in on-air broadcasts to the public.
c. STATS provides its STATS On-Line Service to sports fans
who want detailed statistics and current statistical news on
professional teams. In addition, we provide a similar service
for professionals in the sports industry called STATS Pro-Line.
We also provide real-time scores and statistics on major league
baseball and NBA basketball games to SportsTrax, a paging device
developed by Motorola, Inc.
d. STATS is a content provider to the America Online
("AOL") on-line service. We currently provide analysis and
statistical information on NBA basketball, major league baseball,
NFL football, and NHL hockey to a site on AOL. We also provide
score and statistics updates for games in progress for all major
sports on the STATS Scoreboard, which is a "location" within the
STATS AOL site. AOL recently issued an award to STATS' Scoreboard
as the best application of technology by an AOL content provider and
"Member's Choice" award as one of the top sites on AOL.
The "raw material" for STATS' analyses are sports statistics
-- the at-bats, shooting percentages, times sacked, goals scored
type of figures familiar to every sports fan who reads the box
scores. STATS regularly accesses and uses the body of sports
statistics which are compiled by the major sports leagues or
their outside "official statisticians." STATS also compiles its
own body of statistical information through STATS reporters who
attend games or who observe public sources such as television and
radio broadcasts. Both current and historical sports statistics
have been a traditional feature of sports reporting and analysis
for decades and have uniformly been considered to be within the
public domain. Without free access to this data, companies such
as STATS could not provide sports fans with the creative analyses
they desire.
Current United States copyright law protects the public's
right to access and use sports statistics and other purely
factual information, even when contained within an otherwise
copyrightable work. Many recent court decisions have held that
this information is and should remain in the public domain.
STATS' business is dependent on continued free access to that
information. Indeed, STATS is currently engaged in litigation
with the National Basketball Association in order to defend the
principle that once made public, sports statistics (including
those revealed within broadcasts of sports games) are in the
public domain and may be redisseminated at any time without
permission of the sports leagues.
Objections to The Proposed Treaty
The Proposed Treaty threatens the business of sports
analysts such as STATS. For example, the statistics which STATS
uses as material for its analyses would acquire the status of
"databases." Were the Proposed Treaty in effect, STATS' current
activities with sports statistics would be very likely to violate
the sui generis protection granted to database owners. The
sports leagues would argue that their statistical compilations,
including individual game scores and statistics, qualify for sui
generis protection, either because they are compiled through
their or their statisticians' "sweat of the brow", or because the
leagues make substantial investments in the games that produce
the statistics. Although STATS compiles its own statistics and
analysis, it also makes use of large portions of seasonal and
individual game statistics compiled by the leagues. Under the
Proposed Treaty, this activity is likely to be considered
prohibited "extraction" or "utilization" of a database. Since
there is no provision for a fair use doctrine under the Proposed
Treaty (see below), STATS would be unable to defend on the
grounds that its use of league sports statistics is
transformative," that is, used to create wholly new works not
directly competing with the database itself.
Unless licensed to work with these statistics by the sports
leagues, STATS (and any other entity involved in sports analysis)
could well be put out of business under a sui generis regime.
This is no theoretical risk. Today sports leagues make
substantial sums from exclusively licensing their intellectual
property for use within defined markets. Under a sui generis
scheme, a league could similarly license chosen publishers,
giving them exclusive rights to use the league's database of
statistics in publishing books of analysis. This arrangement
could effectively bar others from bringing out competitive books.
The same problems would affect financial analysts and
writers. For example, a stock exchange could obtain sui generis
protection for tables of trades and statistics about prices; a
company could claim the same rights in its annual financial
statements and reports. Here again, the power to license could
easily become the power to suppress, for under the Proposed
Treaty a rightsholder could simply deny a license to a financial
analyst whose studies were less than flattering.
Our concern is not solely for STATS' business. The proposed
sui generis protection would radically transform settled law and
would cause serious erosion of the public domain. At least four
aspects of the Proposed Treaty are particularly troubling.
First, the key term "database" is defined far too loosely.
The definition encompasses a substantial number of works which
are traditionally subject to the limited protections of copyright
law. Any literary, musical, or audiovisual work will benefit
from sui generis protection, as long as it is contained within a
collected group of such works organized in some "systematic"
manner and is capable of being individually accessed. See
Memorandum of the Chairman of Committee of Experts, Note 2.02 to
Proposed Treaty, Article 2. Since the sui generis protection is
cumulative of copyright, see Proposed Treaty, Articles 1(3), 12,
a great many copyrighted works will also be considered
"databases" and protected as such. Copyright holders will
naturally prefer to use broad sui generis protection, rather than
limited copyright law, to advance their interests. A century or
more of efforts by Congress and the courts to balance the rights
of copyright holders and users could be swallowed up by a system
of sui generis protection which one-sidedly favors database
owners.
Second, the proposed treaty contains no parallel to the fair
use doctrine in copyright.[1] Under fair use, many uses of
copyrighted material are permitted where (1) the purpose and
character of the use fall into traditionally permitted
categories, such as comment, criticism, research and news
reporting, or where the use is "transformative" in nature, (2)
the work is factual rather than creative, (3) the amount and
substantiality of the use is not great, and (4) the effect on the
market for the original is not great. 17 U.S.C. Sec 107. Other
commentators have suggested that use of a copyrighted work is
fair where the second user's work performs a different function
than the plaintiff's. 3 M. and D. Nimmer, Nimmer on Copyright,
Sec 13.05[B][1].
In contrast, the only defense available to the user of a
database under the Proposed Treaty would be the
"insubstantiality" of the use. Whether the use was in the
interest of the public or functionally distinct from the method
in which the database is now used would be irrelevant. Almost
any use of facts within a systematic compilation of facts can be
deemed to take a "substantial part" of the compilation, as long
it is of "qualitiative or quantitative significance to the value
of the database." Proposed Treaty, Article 2(v). The sui
generis proposal thus could have the paradoxical effect of
providing greater protection for factual databases than copyright
now affords to highly creative works. Moreover, in almost every
litigation, the question of whether a use was "substantial" would
be one of fact, resolvable only at trial after substantial
litigation cost to the user. This expense and risk of litigation
would tend to discourage even insubstantial uses of facts from
compilations and databases.
Third, the manner of adoption of the Proposed Treaty ignores
our country's tradition of altering intellectual property law
only after careful legislative attention to the effect of changes
on the balance between private and public interests. For
example, the revisions to the copyright law that became the
Copyright Act of 1976 were enacted only after extensive hearings
and reports over a period of eleven years. In contrast, the
Proposed Treaty would be submitted for ratification only to the
Senate, even though matters of copyright law are traditionally
within the consideration of the House of Representatives as well.
Moreover, ratification would compel ratifying states to adopt
national legislation implementing the underlying sui generis
protection. Subsequent congressional hearings on implementing
legislation could not undo the fundamental flaws of the sui
generis concept.
Fourth, the proposed sui generis protection poses serious
problems of constitutionality. The Copyright Clause to the
Constitution, article 1, section 8, cl. 8, empowers the Congress,
"[t]o promote the progress of science and useful arts, by
securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries." A basic
assumption of the Copyright Clause is that only original works of
authors are protected. In contrast, facts are not original, but
discovered; copyright cannot extend to facts themselves, although
it may cover their arrangement and selection where original.
Feist v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347-48
(1991). The Copyright Clause may well limit Congress's power to
grant monopoly rights in facts, a limitation which would be
breached by adoption of sui generis protection.
Even more serious is the clash between the Proposed Treaty
and the First Amendment. The private property rights granted by
copyright law are made compatible with First Amendment
protections of freedom of speech and press through two concepts:
the "fact-expression" doctrine, which permits free use of any
facts contained within a work of authorship (see Harper & Row
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556
(1985)); and the fair use doctrine, which allows even protected
expression to be taken in certain circumstances. In contrast,
the Proposed Treaty contains neither of these limitations. It
would permit nearly unlimited protection for facts (as long as
these are arranged in a "database") and contains no exception for
such socially desirable uses of factual information as comment,
criticism, news reporting, or research.
There is No Compelling Need for Sui Generis Protection of
Databases
As noted above, adoption of the Proposed Treaty would
seriously erode the public's traditional right to access and use
facts. It would limit or destroy socially useful
activities such as the statistical analysis which is the heart of
STATS' business. Before considering such a radical change, one
should demand irrefutable evidence of a compelling need for broad
sui generis protection for databases. No such evidence has been
offered. In particular, there is no proof that database
publishers have been imperiled by the Supreme Court's rejection
of the "sweat of the brow" theory for copyright protection of
facts in Feist. Later case law shows that the copyright law
still provides substantial protection to database owners who put
even minimal originality into their selection or organization of
facts. Nor is there any empirical evidence that the absence of
sui generis protection under United States law has depressed the
value of databases or diminished the incentive of database
compilers to pursue their business.
We also have personal experience with this issue, because
STATS is itself a "database" proprietor. Our detailed
statistical collections and analyses, which go well
beyond any league-compiled statistics, are considered
authoritative among sports fans and within the sports industry.
We spend substantial sums to develop these compilations and
analyses, and they form the core of our business. Nonetheless,
we have always believed that current United States and state law
fully protects our rights in those statistical collections and
analyses against misappropriation, and we have never felt the
need for a new form of protection. The absence of sui generis
protection has not affected our incentive to continue and expand
our database business. In short, the Proposed Treaty
provides an unwise -- indeed, dangerous -- solution to a non-
existent problem.
Conclusion
Databases are adequately protected under existing United States
law. In contrast, adoption of the Proposed Treaty would disturb
the traditional balance between private and public interests
developed over more than a century of copyright law. In our
view, the many arguments against adoption of sui generis
protection for databases are compelling. For the reasons set
forth in this letter, we urge that the United States delegation
to the Diplomatic Conference withhold support for the Proposed
Treaty.
Very truly yours,
SPORTS TEAM ANALYSIS AND
TRACKING SYSTEMS, INC.
By:_________________________________
John Dewan
President
[1] Some limitations on sui generis protection may be adopted in
national legislation, but only where this does not "unreasonably
prejudice the legitimate interests of the rightholder." Article
5(1). However, H.R. 3531, "The Database Investment and
Intellectual Property Antipiracy Act of 1996," introduced in
anticipation of the Proposed Treaty, contained no fair use
exception.
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