With Hawk-Eye in tennis, Hot Spot in cricket and pass completion percentages in football, 18 months into a global pandemic, it was inevitable that sports have continued to invest in artificial intelligence (AI) to enhance live experiences for its fans.
As the 149th Open Championship finished this weekend at Royal St George’s Golf Club, the Royal and Ancient Golf Club (the R&A) will no doubt be reflecting with NTT Data (NTT), its IT provider and Official Patron, on how well its latest technological innovation has engaged its fans, and what the R&A’s return on investment is looking like.
Those who have ever attended The Open will be familiar with the NTT Data Wall, the 24-by-ten metre interactive LED display, which has been a feature of the spectator village since 2014. The Data Wall allowed the fans to follow the latest developments across the course. This year however, the R&A tasked NTT to come up with a virtual alternative following the uncertainty of whether fans would be allowed to attend in person. The NTT responded by providing a personalised, real-time feed for fans across the world to follow their selected players, view highlights, shots, statistics, review head-to-head comparisons with fellow competitors, and allow fans to keep abreast of the latest developments from across the course.
With eight billion data points used within the technology itself and the sensitivities around using and implementing advanced technologies such as AI, the R&A and NTT would have considered a range of legal issues, not least privacy and data protection, intellectual property rights and brand protection, consumer regulation, and more. Find a bitesize insight into data protection and intellectual property legal considerations below.
As is the case across a number of sports that use AI, key issues in respect of data privacy laws include whether personal data is being used fairly, lawfully and transparently, and how that data is secured. Both players and fans want to trust that their personal information is safe; should there be a breach of that trust as a result of lax data protection policies and procedures, the Information Commissioner’s Office will likely take interest, particularly with emerging technologies such AI. It’s important to put in place mechanisms to ensure that players and fans fully understand how their data is being used and that, where appropriate, they have a choice – for example, implementing clear, granular consent captures that cover all purposes for which the AI uses personal information. Other ‘legal bases’ (i.e. justifications) for using personal data within AI tools should not be overlooked.
NTT and the R&A are accountable for their compliance with data protection laws, a principle under the UK GDPR, meaning that they must actively manage risks that arise as a result of their processing of personal data. The R&A and NTT, along with other sports organisations, should have the principle of ‘data protection by design and by default’ at the forefront of any new innovations. Privacy considerations should always be factored into any project costing; failing to do this at the outset could lead to even bigger fines and compensation claims later down the line that would eat into any return on investment.
But what about the players themselves? The most diligent of players may be looking at the accuracy of the data that is being produced about them and who “owns” that data – how do their rights under data protection laws sit alongside this (for example, the right to erasure and the right to correct data)? Ownership is often dealt with in rights and licensing contracts, however to date, data protection is not typically addressed. Players’ data protection rights, and ownership over their data, is a timely and ongoing discussion in many sports today as epitomised by the operation of Project Red Card which in itself holds the possibility of impacting how player data is used across sport.
In respect of intellectual property (IP), the agreements in place between NTT and the R&A would need to address the IP position in relation to machine-created works and autonomous action, more particularly, ownership of the IP rights in relation to the machine-generated original works.
In respect of the protection of IP, NTT and the R&A likely rely on legal frameworks and contractual provisions to protect their IP. This may include copyright, patents, design rights, registered or unregistered trade marks (to protect word marks, logos or icons) and the use of contractual terms entered into with end-users and third parties which set out the permitted use and ownership of content and data sets. Working through the contractual protections that a party requires when implementing AI technology, is not ‘business as usual’.
The UK Intellectual Property Office’s (IPO) consultation on AI and IP in March 2021 asked whether the UK’s IP framework is fit for purpose with respect to AI and one such discussion point was ‘who should own the copyright?’: the owner or the user of the AI system? The Government’s response has restated the continuing uncertainty. The ownership position is still unclear where work has been created by a computer without human creative input. The R&A and NTT would no doubt have been keen to address this issue in their discussions, and it would be interesting to know what they contractually agreed.
Dialogue with our clients is increasingly turning to AI, from the opportunities it presents to the challenges it creates, whether from an IP, Data, Privacy or jurisdictional perspective and as the Government’s aim is for the UK to be at the forefront of AI, it’s undoubtedly an area that businesses and lawyers will remain versed in the coming months. One of the innovative products that Shoosmiths offers to both existing and new clients is Cia®. Powered by AI, it’s a product that provides contract reviews in just a few minutes from start to end. The AI pinpoints key risks and deviations from market norms in addition to automatically generating corrective drafting, saving time and providing pragmatic advice in the time it takes to make a cup of tea! To find out more about this product offering and to speak to a member of the team, please click here.