SPORT IP
in a statement that it takes the “protection of IP seriously” and would be prepared to take such steps it “deems appropriate at any given time taking into account all relevant circumstances”.
Protecting against online infringements
As has become commonplace in the current technological market, one of the biggest threats to copyright online comes from the multitude of streaming websites which have become available. Various platforms have been implemented allowing consumers to circumvent licensing agreements by streaming directly to their computers, regardless of their geographical location.
Tornton says: “Unlike other content such as film, the value of sports rights is in the live transmission and quickly diminishes aſter that. Consequently, online infringement by way of live streaming has a larger potential to affect the value of sports rights, as compared with music or film.”
Tis view was backed by the EPL, which said in its comments to the IPO that unauthorised copying and re-transmission represents “the most direct threat to … investment and innovation”.
“Furthermore, the growth of piracy undermines confidence in future revenues, thus reducing incentives for the long term,” it added.
However, this type of system may conflict with EU laws on the free movement of goods and services, which are guaranteed within member states. Te rule has created problems from a licensing point of view, particularly in relation to its use in the Murphy case.
With this in mind, it reinforces the argument that a pan-European licence, with one price, could be a feasible outcome for the dominant broadcasters and consumers.
Körner doubts this is a likely or sensible option, adding that while free movement was an EU principle, it could in turn create problems with competition laws. Tis is because, he says, it could lead to a situation whereby only the richest broadcasters would be able to afford a licence they liked for the privilege of accessing coverage. He says any mandatory requirement for a pan- European licence would stifle competition and prevent certain broadcasters from being able to compete.
“In order to have the best possible commercial outcome, the simplest thing to do is to license by territories,” Körner says.
www.worldipreview.com
“Te television market is oſten nationally based so it would be difficult to sell rights on a pan- European basis, despite the emergence of large broadcasters such as BSkyB—even they are not in every market.
“If you make a rule that says ‘we are selling one exclusive package of football rights’ but only the companies that could afford it would have the opportunity to get the rights, rights holders such as UEFA may then avoid giving licences to smaller countries where they see a risk. In Greece, for example, transportable smartcards are so cheap that it makes sense to export them rather than buying into a pan-EU agreement,” Körner says.
Tornton says that given technological advances and Europe’s aim to create a single market for copyright, it is likely that mechanisms for pan- European licences will be considered at some stage.
However, she too adds that it would be unlikely to result in a mandatory requirement, a move which would “reduce flexibility and risk distorting price”.
UEFA declined to comment on specific questions put to it by TB&I on its licensing policy, but said
Körner says that while blocking orders may be effective on a European platform, there is a growing threat from Russian, Chinese and Asian websites.
“It sometimes doesn’t make sense to attack these because protection of IP rights is so different you don’t have that same assurance that the courts will help,” says Körner, adding that the threat from emerging markets was the “biggest challenge” held by licence owners today.
Tornton agrees, noting that although sports organisations have had “some success” in the UK with blocking orders, it is easy for website operators to switch IP address and avoid being caught.
Te football licensing world finds itself in a difficult situation. While a pan-European licence may seem attractive to consumers and in line with EU principles, it could exclude jurisdictions that cannot meet price demands. Furthermore, the current system and the judgment in the Murphy case could potentially pave the way for a circumvention of broadcasting rights.
It’s clear that while the appetite for broadcasting football remains, the real problems lie in the effective licensing and protection of rights.
Trademarks Brands and the Internet Volume 2, Issue 4 39
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