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Sports Statistics to Be Regulated Under WIPO Treaty (fwd)

  Info-Policy-Notes - A newsletter available from listproc@tap.org
  NOVEMBER 10, 1996
                   Government Proposes New Regulation of 
                    Sports Statistics and other "facts"
                              James Love
                     Consumer Project on Technology
                       love@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
  	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 
  	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 
  Copies of the proposed treaty, a federal register notice 
  asking for public comment, and independent commentary can be 
  found at:
  	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." 
  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 
  	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 
  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 
  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).
  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: 
  If you want to know more about his proposal, check out 
  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@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@sims.berkeley.edu
  Professor Peter Jaszi, American University, School of Law, Voice 
  (202) 885-2600, pjaszi@wcl.american.edu
  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-
  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."
  "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."
  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 
  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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