Protecting athletes’ data: an examination of database rights in the UK and EU

I have just visited the Church of Madonna de Ghisallo, the Church of the Patron Saint of Cycling. It sits on the long climb up from Lake Como, occasionally part of the Giro D’Italia and the Tour of Lombardy. Adjoining the Church is a museum containing a collection of cycling artefacts.

One of the most interesting exhibits is a 1905 racing cycle, whose essential frame design, complete with drop handle bars, appears fundamentally the same as that of the modern cycle. The similarity is of course superficial and cycling, in common with most sports, has benefited from technological developments. Those developments embrace the love of modern sport for amassing data. That of course us brings us back to cycling and the allegations that Chris Frome’s data was hacked during the course of the Tour De France.¹ There have been notable other examples of data theft or misuse in sport, particularly where it is being used to gain technical insights. These have occasionally led to the courts, for example the Force India Formula One Team litigation against Lotus.²

In such context, this blog examines the UK and EU laws on database rights and the protection it offers to sports teams engaged in data collection.

Theft by an employee

Data theft is not unique to sport and the Courts are familiar,³ certainly in England, with applications for injunctive relief to restrain the use of data that has been wrongfully removed and to require its’ permanent deletions. The removal of data may be the result of the activities of an errant employee; here the Common Law path is well trodden with case law dating back to the 19^th Century based upon the employee’s duty of good faith towards their employer.

Theft of copyrighted material

If one is concerned with copyrighted material, then established protections around intellectual property rights provide the remedies, in the UK under the Copyright Designs and Patents Act 1988 (CDPA) and the rights derived from the EC Copyright Directive 2001.⁴ There may be copyright over a database, or indeed the information amassed within the database, if "by reason of the selection or arrangement of the contents of the database the database constitutes the author's own intellectual creation".⁵ That will be a hard test to satisfy in the context of most sporting data, because the database may simply consist in the storage of collated dated without any specific creative input into the design of the database itself. For example, in Football Dataco Ltd and Others v Yahoo! UK Ltd and Others,⁶ a database of football fixture lists did not meet the definition of a database for the purposes of the Directive as there was no originality in the creation of the database.

Theft of data

But what if one is concerned with the simple taking of data, such as the performance data in the case of Chris Froome? Here the allegation was that Team Sky’s computer system had been hacked and that Chris Froome’s performance data for a section of the tour had been copied. Shortly afterwards a clip appearing on YouTube comparing his performance on the same section 2 years before. The key issue being that the data alleged to have been copied was the raw stored data. The basic Common Law position is that there is no property right in information of itself.⁷