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Copyright issues, TV rights in sports broadcasting and streaming

16 February 2021 12:00 am - 0     - {{hitsCtrl.values.hits}}

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 The broadcaster who takes exclusive rights can demand a conditions from the sports venue

 

  • Copyright in its culture is constructed to deal with author’s supremacy and branches out to the two prone claim viz economic rights, and moral rights
  • There is a consensus that sports events are not copyrightable subject matter. However recently, a proposal was made to include sports events as works under copyright
  • In Sri Lanka although the Copyrightability of Aesthetic sports hasn’t been tested in judicial decision so far, under section 6 (1) of Intellectual Property Act of Sri Lanka

 

 Television and media organisations pay much money for the exclusive rights to broadcast sporting events. On the other hand selling of broadcasting and media rights is one of the biggest sources of revenue generators with regarding to sporting events. The daunting task in the sports broadcast industry faces is to safeguard these costly investments in televising sporting events, recognizing entrepreneurial efforts of broadcasting organisations and recognising their contribution to diffusion of information and culture. 


Two major issues revolve around sports broadcasting at present. Issues known as copyright on neighboring rights or related rights on one hand and on the other hand signal piracy especially owing to social media and new media issues which affect television rights.


The Law


The laws that govern international broadcasting comes under the International Convention for the Protection of Performers Producers of Phonograms and Broadcasting Organisations (Rome Convention) of 1961, Trips Agreement ( similar provisions), Domestic Copyright laws applicable on sports and broadcasting and the decided case law. The Rome convention protects the Broadcasters right called the neighbouring right. Neighbouring right is a separate exclusive right which is essential to broadcasters which gives remedy against the unauthorised use of their broadcast signals.


The usual protection under Copyright extends only to expression of ideas. Copyright in its culture is constructed to deal with author’s supremacy and branches out to the two prone claim viz economic rights, and moral rights.
Neighbouring rights are of a creative work not connected with the work’s of the actual author. It is used in opposition to the term “authors’ rights”. . It is also known by some authors that what the Rome convention does is an extended copyright protection. With regard to the ‘Broadcasting the neighbouring right’ it protects only the signal that the broadcaster transmits to carry content. It does not protect the programme or the content itself. The copyright in that content or the programme flowing through the signal is protected separately by copyright attributed to the author of that content. The neighbouring right can subsist to the broadcaster even if the broadcaster has no copyright in the underlying material being broadcast. 


Is there Copyright Protection over Sports?


The next question is whether there is a copyright protection over sports? The short answer is it depends on the type of sporting event. Sporting events are divided into two types: Purposive Sports and Aesthetic Sports. Purposive Sports is the Sports in which aesthetic considerations which are incidental. Eg : Cricket, Football, Rugby, Hockey and all field based events. Aesthetic sports are: Figure skating, synchronized swimming and gymnastics. 


Lets examine the array of International decided cases that have dealt with these issues.


From the cases on Purposive Sports, in the U.S. in Baltimore Orioles, Inc v. Major League Baseball Players Association, 805 F. 2d 663 (7th Cir. 1986) Baseball was not considered a copyrightable subject matter as it lacked sufficient artistic merit. In National Basketball Association v Motorola Inc, 105 F.3d 841 (2d Cir. 1997) Basketball Games were not copyrightable subject matter under Section 102 (a) of the U.S. Copyright Act, which meant it didn’t fall within the definition of copyright. In the Canadian case FWS Joint Sports Claimants v. Canada (Copyright Bd.), [1992] 1 F.C. 487, 501 (C.A). it was held there is copyright protection over sports as it was not a choreographic work, but mostly a random series of events. In EU Premier League v. QC Leisure and Murphy v. Media Protection Services Ltd, [2012] 1 CMRL 29 A Football match was not considered copyrightable subject matter as it was not an intellectual creation. In the United Kingdom in the light of Norowzian v. Arks Ltd. (No. 2) commentators have noted that purposive sports cannot be protected as dramatic works. In India India Institute for Inner Studies v. Charlotte Anderson 2014 (57) PTC 228 (Del) Sports events were not copyrightable as they fell short of the requirement of fixation and predictability. In China PRC’s copyright law is silent on whether sports events were copyrightable works. There is a consensus that sports events are not copyrightable subject matter. However recently, a proposal was made to include sports events as works under copyright. In Australia Australian Olympic Committee v Big Fights Inc. (1999) 46 IPR 53 A film of a sporting event as was not itself considered a dramatic work and more was required than recording real life events.


 On the other hand Aesthetic sports can be protected as dramatic works and chorographical works depending upon the jurisdiction. In U.S.it is considered as dramatic and choreographic works if performed in a non - competitive setting. Live sports broadcast can only be protected as audiovisual works under Section 102 (a)(6) of the US Copyright Law provided it was a fixed event. In Baltimore Orioles v. Major League : Live telecast of baseball game was copyrightable... In the UK it can be protected as dramatic works. In India too it can be protected as dramatic works as its defined under Section 13 (1) Indian Copyright Act, 1957. In US - After 1976, there was no copyright protection for live sports broadcasts In EU Football Association Premier League Ltd and Others v QC Leisure and Others (C-403/08) and Karen Murphy v Media Protection Services Ltd Court of Justice of the European Union (CJEU) ruled that while sports events were not copyrightable except the broadcast and the surrounding media such as opening video sequence, the Premier League anthem, pre-recorded films and various graphics were protected by copyright law. In Sri Lanka although the Copyrightability of Aesthetic sports hasn’t been tested in judicial decision so far, under section 6 (1) of Intellectual Property Act of Sri Lanka. 
The next question to address here is the effect of Signal Piracy and Theft on Sports Broadcasting. Advanced technologies accessible to a wide public, have opened new possibilities for signal theft. Live sports broadcasts is the main target of Signal piracy. Live streaming apps have changed the dynamics of traditional broadcasting. Signal piracy threatens advertising and sales revenues of the broadcasters. It reduces value of the rights and affects revenues of sports organisations. The exclusive sale of broadcasting rights of sporting events is the largest source of revenue for many sporting leaguess. Broadcasters therefore consider exclusivity to guarantee the value of a given telecast


Exclusive Licensing of Sports Broadcast


One of the issues that commonly crops up in Sport Broadcasting is the exclusivity of the licensing issue. Sports broadcasters obtain exclusive license expecting they have copyright over the broadcast as the licensor cannot later or simultaneously give license to others. The position changes from country to country depending on the statutory or common law provision they follow regarding licensing. It is important to understand the interpretation of what is licensing, exclusive licensing and the difference between licensing of copyright and assignment.
In this regard an analysis of a Sri Lankan case becomes pertinent. In the case Sri Lanka Rupavahini Corporation v. MTV channel Pvt Ltd (HC (Civil) 16/2012(P) the Plaintiff obtained an exclusive license to broadcast of London Olympics Games in 2012 in Sri Lanka. Subsequently the licensor granted rights for another broadcaster to broadcast simultaneously. The Plaintiff sued for violation of copyright. The Court finally held with the defendant that by giving the licensing to defendant to broadcast as well, stating Plaintiffs copyright was not violated and allowed both. What needs to be understood is this: A licensor by granting of a license to the one person does not transfer their copyright or other intellectual property right. In other words proprietary rights remain with the owner of such rights. That is the licensor by a license does not convey any proprietary rights to the licensee. If the owner wishes to convey such proprietary rights, it would have to be done by way of an assignment agreement. This is the conceptual legal distinction between a license and an assignment. In Sri Lanka the law relating to the licensing of copyright is governed by Section 16 of the Intellectual Property Act No 36 of 2003. Section 16 (1) is set out: The owner of a copyright may (a) Grant license to a physical person or legal entity to carry out all or any of the acts relating to the economic rights referred to in Section 9; (b)Assign or transfer in whole or any part of the economic rights referred to in Section 9. Under Sri Lankan law therefore it is clear that there is no contemplation of an ‘exclusive license’ with regard to Copyright.


The position in Sri Lanka was similar to the common law position followed in England prior to the specific statutory amendments which were introduced later where the concept of exclusive copyright licensing was recognised. The similar position to Sri Lanka was upheld in a series of English cases initially and as the correct position in law. However, statute law in England and Singapore latterly intervened to permit exclusive licensees from protecting exclusive rights holders. Thus the current position dealing with the English or Singaporean law reflects on the fact that exclusive licensees have the right to prevent others from telecasting or broadcasting. 

Online piracy and solutions


It happens in several ways. Peer-to-peer (P2P) network is the most popular form of online sports broadcasts by one person sharing content with another person online without any personal interaction. Unicast streaming is where material is saved on a server and made available to users on a website. Most unauthorised live streaming of sports is conducted through this technology. Set top box Piracy is another way. Pirates pay for subscription and use the set top box to send digital feeds to other servers where they can on-sell the content to a broader audience at a cheaper rate. Individuals recording matches with their mobile phones and streaming it live through applications such as Periscope and Meerkat is nother way. 


What has to be understood is this; Any person online live-streaming of another’s broadcast without authority is a copyright infringement. (Live telecast of Sports Broadcast is copyrightable - Baltimore Orioles v. Major League.). But the position, illegal live streamers take is the right to freedom of expression and that freedom of expression requires public platforms and can only be effective if information, entertainment and ideas can be freely exchanged. On the other hand the Broadcasters position is the monetizing of the cost of rights & production is procured by passing it to subscription of viewers and advertisers and this is heavily compromised by illegal live streamers.


As enumerated above it is a clearly established law that there is no copyright in a Sporting match or spectacle which fall under Purposive Sports category which bears the brunt of top Sports. But the Broadcast or the signal of broadcast of that match or spectacle will have copyright in the broadcast covered under neighbouring rights of the broadcasting organisation. 


Then there is a question, is live streaming by the broadcasters on their own site constitutes a broadcast? The correct position would be that the internet simulcast amounts to a broadcast, if that live streaming is a simulcast of content by a traditional broadcaster or other. Copyright law in principle and theory intend to incorporate a broadcast of an internet transmission of content as broadcast, which would include streaming. But the problem lies in the interpretation of most legislative instruments of what is a broadcast. For an example in Sri Lanka Broadcasting is interpreted under section 5 of the Intellectual Property Act No 36 of 2003 as  “broadcasting” means the communication of a work, a performance or a sound recording to the public by wireless transmission, including transmission by satellite ; It does not directly state that a broadcast include streaming or online transmission although one may suggest the by the words wireless transmission and satellite it can constitute an online streaming position. A timely amendment is required is my position. 


Then the next question is what happens to individuals recording sports matches with their mobile phones and streaming it live directly from being in the audience of a match or from a television to any viewers using the application or streaming site. The answer is twofold i.e Capturing & streaming it live directly from being in the audience is no copyright violation of the broadcaster, but capturing from television broadcast & streaming it live is copyright violation of the broadcaster who has copyright over the television broadcast. In UK English Cricket Board (ECB) and Sky UK Limited v. Tixdaq Limited and Fanatix Limited it was held, to upload short clips of sports broadcast footage, filmed on their mobile phones from television broadcast is a copyright violation. 


This position was commented as rather unfair because the right of a broadcaster who takes exclusive broadcasting rights to a match is compromised in that situation. In this regards several solutions are suggested. One is by way of Contracts Law Application. The broadcaster who takes exclusive rights can demand a conditions from the sports venue such as to insert restrictions on filming and photography on the ticket of spectator as the ticket is the spectator’s contract of admission to an event. With such terms in place to combat capturing by spectators and streaming it as unauthorised peer-to-peer broadcasting, event organisers could increase enforcement of ticket contracts. The other solution is Sui generis Common Law Application which ertain jurisdiction follow. In U.S., the state and federal court decisions have recognised & implied a sui generis property right in sporting events arising under common law. It was held in Twentieth Century Sporting Club, Inc. v. Transradio Press Service giving updates from the event where someone else had broadcasting rights is an unlawful appropriation of the exclusive property rights. In National Exhibition Co. v. Fass It was held that it is a property right of the plaintiffs with which the defendant is interfering. The owner or organiser of the game has property rights … include the proprietary right to sell to others … licenses or rights under which the purchasers are authorised to … transmit such descriptions for 

In minimizing of telecasting rights issues in Sports events a better approach in developing the law would be the approach taken in France. French Sports Code sets a forth statutory effect to sui generis right. This is a unique or distinct type of legal right that provides sporting event organisers with a monopoly over the right to broadcast their events. This right is conceptualised as a neighboring or related right to copyright, in that it affords ownership rights to those persons responsible for creating a work, along with attendant rights to control the “exploitation rights” to that work (including the audiovisual exploitation rights). It is different, however to copyright as it protects not a work of authorship, but a spontaneous, unscripted contest. In a decision of 2004 Andros v Motor Presse France (542 of 17 March 2004) the right has been interpreted to include any form of exploitation of the images taken at an event. In this decision the French Supreme Court held that organisers of sports events have the right to authorize the recording of all the images of the manifestations they organised notably by distribution of the pictures taken on the occasion. 


This kind of approach in reformation of the law if adopted worldwide will assist protecting purposive sports broadcasting rights which the traditional copyright law does not protect. The owners can pass on this right to the broadcasters who buy the broadcasting rights. Both laws seek to encourage the creation of the protected works. Copyright encourages the authors of works (e.g. artists, writers), while the sui generis (unique) right encourages those who invest in facilitating and staging the protected works (e.g. leagues and teams, not players). The French Sports Code also aims to balance the valuable ownership rights conferred on sports federations and organisers by imposing certain limitations in the public interest. The aim is to balance the monopoly conferred upon sports federations and organisers with the public’s right to information (recognising news reporting and news access interests); and in certain cases, make mandatory bidding processes for the award of broadcast rights to broadcast licensees (recognising the importance of transparent, non-discriminatory processes). Therefore it is my view that a Universal Law akin to the French Sports Code would help solve most part of the Sports Broadcasting violation issues and prevent the Sports Broadcasting industry being subject to Piracy to a large extent.

 

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