Wednesday, August 9, 2006

U.S. Court Rejects IP Claims to Baseball Stats: Is the EU Ready for the Challenge?

While U.S. copyright law has always been more liberal than the European Union towards the right of publishers to copy facts for other uses the advent of the Web has raised a flurry of U.S. lawsuits in recent years to claim more intellectual property rights to factual data. But USA Today notes that a recent decision in a closely watched case has tipped the scales in favor of facts-seekers. The ruling against Major League Baseball Players Association by a content licensee that was denied a license renewal for baseball players' names and statistics notes clearly:
"The undisputed facts establish that the names and playing records of (MLB) players as used in CBC's fantasy games are not copyrightable and, therefore, federal copyright law does not pre-empt the players' claimed right of publicity...the First Amendment takes precedence over a [right to publicity]."
This will be a boon for data miners that have been fighting a myriad of conflicting laws, regulations and Web site terms and conditions - and a shot across the bow to EU publishers that continue to fight off claims to legacy database products.

The EU Database Directive of 1996 provides "sui generis" protection to facts that have some significant investment in them, but a relatively recent Working Paper being circulated is pushing to drop these requirements and has drawn support from institutional content purchasers. Though this may sound like an attack on publishers' profits, comments from the American Library Association point to a section in the working paper that underscores the negative effects of data protectionism: "Alarmingly, in the years since the adoption of the Directive, the European share of the global database market has decreased relative to that of the United States, and the ratio of European to U.S. database production has decreased from 1:2 to 1:3." In other words, if the directive is necessary to protect the viability of premium database producers, what is the evidence that it's working?

Though this "rising tide" of facts access may not lift all publishing boats equally the net effect on the publishing industry of resisting over-protection of facts is in general quite positive. The USA today article on the decision against the MLPA notes that fantasy sports are generating an estimated $100 million in revenue and growing at a 7%-10% clip annually - a growth rate that may be stymied if these small publishers are forced to pay for data that should be in the public domain. The Web has raised the awareness and value of public domain content as virtual "seed money" that allows content properties to develop to the point where they're worth considering for acquisition by major publishers or further nurturing with higher margin products and services.

Database publishers will continue to protect truly unique intellectual property whenever possible, but the time is upon us when the publishing industry needs to focus IP protection efforts on content that's truly unique and to leave the doors open for developing more business relationships through factual data and other content that should reside squarely in the public domain. It's more sweat, yes, but sometimes sweat is not a bad thing.

UPDATE: paidContent.org notes the inevitable appeal on this ruling, but expect it to have quite a bit of influence in the meantime. While there will be some strong arguments from publishers for the basis of an appeal, historical facts on public acts are likely to carry the day.
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