Out-Law Analysis Lesedauer: 4 Min.
23 Mar 2023, 4:31 pm
It needs to be made easier for sports events organisers to address the cost of piracy and protect the value of broadcasting rights.
Arguably, the EU and UK do not currently provide adequate legal protection for live sport events organisers and their investment. However, there is an upcoming opportunity for EU policymakers to change that – at least by helping to ensure enforcement mechanisms allow sports bodies to fight broadcasting piracy effectively.
Piracy in live sport events broadcasting is a growing issue. It is estimated to cost event organisers up to €28 billion in lost revenue each year. This disincentivises investment. Illegal streams of live sport events can also harm end users by exposing them to identity theft, malware, or theft of credit card details and other personal data.
The value of live sporting events is short lived – it extends only for so long as the sport results are unknown and is lost as soon as the live event ends. This means that legal protection through intellectual property (IP) rights is vital for sport events organisers to protect that value. However, neither the EU nor the UK provide for a specific IP right that they could rely on, and the efficiency of the existing enforcement mechanisms against illegal live streams – which include injunctions and ‘notice and take down’ mechanisms – has also been the subject of criticism. This is why sport events organisers have been calling for the European Commission to propose legislation that would strengthen their rights and enhance the enforcement tools by requiring online platforms to remove illegal live streams immediately.
Sport events organisers hoped that the issue could be tackled at the EU level by dedicated legislation as early as in 2018, when the idea of a new special EU IP right protecting organisers of sport events emerged for the first time – there was a possibility of that right being introduced in the text of the Copyright in the Digital Single Market Directive. The sui generis right envisaged was to provide the sport events organisers with an exclusive right to fix, reproduce and communicate to the public footage of sport events. Ultimately, however, the proposals did not make it into the final legal text.
Another opportunity for the inclusion of the sui generis IP right, or at least for enhancing the existing enforcement mechanisms against illegal live sport broadcasts, came with the EU Digital Services Act (DSA), which entered into force on 16 November 2022. The DSA applies to all online intermediaries providing services in the EU and, among other things, provides a revised framework for protecting against the spread of illegal content.
Again, however, the proposals failed to make it into the final text, with MEPs expressing the view that any new dedicated EU right specific to sports broadcasting would “not provide a solution as regards the challenges they face that arise from a lack of effective and timely enforcement of their existing rights”. Instead, the European Parliament’s recommendation at the time was to harmonise the notice and take down mechanisms for any illegal broadcast content across all member states and make the process much speedier.
The European Parliament also called for legislation requiring online intermediaries to remove any infringing live sport broadcasts as fast as possible, and in any event not later than within 30 minutes of the receipt of the notification from rightsholders or from a “certified trusted flagger” – i.e. someone who has already demonstrated to them particular expertise and competence in the process – of the existence of such illegal material. The recommendation on the 30 minutes take down window did not make the final draft of the DSA – the text simply requires online platforms to “expeditiously” remove or disable access to illegal content without clarifying whether that means within a couple of minutes or several days.
The European Commission is under mounting pressure from sport events organisers. It recently ran a public consultation on how illegal live sport content ought to be tackled. The consultation closed on 10 February 2023 and has received substantial contribution from the public. The European Commission’s formal response is expected towards the end of April 2023.
Sports event organisers are concerned that the measures flowing from the Commission’s consultation will be non-binding and not stringent enough to compel immediate take down of illegal content flagged to online platforms and therefore question whether it will make a difference to the sector. If the Commission will not pursue the creation of an EU right dedicated to sport events organisers to ensure better protection for them against piracy, perhaps it might clarify the meaning of ‘expeditiously’ under the DSA or introduce new concrete laws in relation to enforcement.
The legal position regarding sport events in the UK is akin to that which applies in the EU. There is currently no sui generis IP right protecting sport events organisers and their work in the UK and there appears to be no immediate plans for such right to be introduced.
Live footage of sport events are protected as works of copyright under section 1(1)(b) of the 1988 Copyright, Designs and Patents Act as broadcast, but sport events themselves are not the subject matter of copyright protection in the UK. This means that the main way in which sport events organisers can protect their investment and rights in these events in the UK is through copyright assignments from the broadcaster, which is normally achieved via licensing agreements. The assignment of copyright in the footage allows notice and take down requests regarding any illegal streams to be filed.
Whilst a sui generis IP right protecting sport events organisers is unlikely to be introduced in the UK or EU in the near future, and whilst there is a push to enhance the current enforcement framework, there are things sport events organisers can do right now to strengthen their anti-piracy strategies and protect their investment more efficiently. One of the most effective ways of bolstering an anti-piracy strategy is by incorporating technological solutions, including proactive tools that allow for speedy automatic detection and removal of illegal streams.
Sport has huge importance in our society and broadcast rights are the main source of income for many sports. For these sports to survive and prosper there has to be a better long-term solution to combatting piracy and that starts with getting it right at a legislative level.
Sports broadcasters, platforms, governments and judicial systems need to all work in tandem to create an effective solution to combat piracy. Whilst injunctive relief is possible it is beyond the legal budget of many sports broadcasters and therefore it is critical to also provide an effective short term solution to remove pirated streams when they are identified.
Co-written by Paulina Kasprzak of Pinsent Masons.