Legal
From Luxembourg to Beijing: “Live Sports Coverage” Under Turbulence
A. Introduction Live or deferred, sports telecast simpliciter is undeniably big bucks. Rights to all sports taken together are a multi-billion dollar business. Understandably, organisers protect to the maximum their investment as these events require patience, resources and money. The legal documents protecting such sporting rights are extensive in length. Contractual laws aside, various other sources of laws are available for this purpose.i
Besides the legal
framework, physical measures such as fingerprinting technologies or web- crawling techniques are also put into place.
Beginning in Venice in the 15th century, through to the 1710 Statute of Anne in the UK, modern copyright laws have made in-roads in wide ranging spheres where no other fields of law could afford appropriate safeguard. Copyright protects the creation of the mind and shields the expression of an idea within a legal cocoon. The crucial international instrument for copyright is still the Berne Convention (BC), instigated by French author Victor Hugo. Following the meeting of the Association Littéraire and Artistique Internationale (ALAI) in Rome calling for an international mutual cooperation, the Berne Convention came to fruition in 1886, to which the UK and China are both party to. The WIPO Copyright Treaty (WCT) 1996 is an improvement on the BC for the internet/digital age.
B. Protection of live sports Article 2 of the Berne Convention protects: “Literary and artistic works” – which include … dramatic…; choreographic works … cinematographic works to which are assimilated works expressed by a process analogous to cinematography… photographic works to which are assimilated works expressed by a process analogous to photography...” (Emphasis mine)
The 1961 Rome Convention was a milestone for broadcasters. This treaty protects the “broadcasts” (also called the related or neighbouring rights) of broadcasting organisations. China is not yet a party to this convention.
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One of the debatable issue disquieting both organisers and broadcasters is the classification of live sports under the BC. Can live sports as being played have enough creativity to amount to one of the works underlined above? A game although it is original while in progress, is not reproducible. The players cannot execute the same actions repeatedly in the same manner and with the same creativity/skill. Hence, the issue of protection for sports under copyright laws is on balance.
This is different for instance to a choreographed sportii
. Such acts
are rehearsed prior to them being performed and hence can be replicated time and again. Another choreographer can copy such acts and to some extent protection can be available. An artistic work can be described as any literary or artistic intellectual creation that has an individual character, regardless of its value or use, which may or may not have a material embodiment. Another core difference is that a performer as defined under the Rome Treaty does not include a sportsperson.
The ‘broadcast’ of live sports as such is protected under the Rome Convention as broadcasts. The Asser Report states: “Similarly any unauthorised use of television broadcast whether on another TV channel or on the Internet is to be considered an infringement of the neighbouring right…” The sportsmen may also have protection for their image, but whether the playing of a soccer game in itself for instance, attracts copyright protection is another ball game altogether!
Is there copyright protection for live sports? The Intermediate People’s Court of Beijing upheld the lower court’s decision in favour of copyright protection for live sports events in the case of Sina vs. iFengiii
of this case is a legal innovation in the APAC region at leastiv
. The reasoning . It is not a
Supreme Court decision and the ruling of the highest court is eagerly awaited (the Defendant having appealed). The judgment in Sina is being heralded as
Nawaz Dookhee**, Manager-Regulatory, Legal & IP Services
the victory of sports organisers and its ambit can be wide ranging.
i. Facts of Sina vs. iFeng Briefly, the facts were that Sina (an internet-based information service company) found that the defendant (Beijing Tianying Jiuzhou Network Technology Co. Ltd – iFeng) was advertising two prominent games of soccer on its website to which Sina had the exclusive rights. The case proceeded as a breach under copyright laws. Sina claimed that iFeng was infringing the broadcast of the TV signals of live games to the public through the use of an information network synchronisation system in the sporting event program. The defendant’s main argument was that soccer games are not subject matter of copyright law. The court found as a matter of fact that Sina had exclusive rights to broadcast the CSL games on its websites and other platforms, including but not limited to live broadcast, recorded broadcast, broadcast on demand and postponed broadcast.
The court ruled that pictures of the CSL games are protected under Chinese Copyright Law, which passed the two pronged acid-test. The interesting question was the meaning or scope of originality in a live sports game. The court held that there is originality and that pictures generated through recording of sporting events, meet the requirement of originality under Chinese copyright law, and shall be regarded as work.”
ii. Facts of Football Association Premier League vs. Others (Joined cases C- 403/08 & C - 429/08) (Known as the Murphy case)
In 2011, the Grand Chamber of the European Court of Justice (ECJ) had the chance to answer the same question – whether there is copyright in live sports events? The ruling of the ECJ is unanimous on this score that there is no copyright in sports events per se.
The UK Football Association Premier League (FAPL) runs the English Premier League. FAPL’s activities include the filming of the matches and making the audio-visual content of these games
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