Broadcasting Rights in European Sports

Question 1

Why are broadcasting rights in European sports important?

Answer 1

Because it constitutes a multi-billion dollar industry - generating huge revenues to the club - more important today than the ticket sale.

Question 2

Which important distinction should be made in relation to broadcasting rights?

Answer 2

1. Sports telecasts (the broadcasted sports event
2. Sports news
3. The sports events themselves

Question 3

What are the rules on US copyright law?

Answer 3

Only original works of authorship fixed in a tangible medium qualify for protection.

Question 4

How is originality under US law comprised?

Answer 4

Comprised of two elements:

1. Independent creation
2. Some minimal degree of creativity.

Question 5

Explain the fair use exception in US law?

Answer 5

A rule permitting fair use of copyrighted material.

Question 6

Is the sporting event itself protected under US law?

Answer 6

No, the sporting event itself is not protected since it is not an original work of authorship.

Question 7

Explain the KCLA case

Answer 7

The KCLA used video clips acquired from the new broadcast of another network without permission. The programs of KCLA was commercially sponsored and therefore the fair-use doctrine was dismissed.

Question 8

Explain the Monster Communications v. Turner Broadcasting System case

Answer 8

The broadcaster used copyrighted boxing footage of Mohammed Ali - the fair use was constituted owing to the combination of comment, criticism, scholarship and research involved.

Question 9

Explain § 1 of the Danish Copyright Act

Answer 9

§ 1 renders protection to a person who has created a literary of artistic work.

Question 10

Does sports telecasts qualify under § 1 of the Danish Copyright Act?

Answer 10

Yes, they qualify as a cinematographic work - if the creation consist of a sequence of live images.
The works must be original in order to be protected.

Question 11

What does § 69 of the Danish Copyright Act protect?

Answer 11

The provision renders protection to radio and television broadcasters - a specific exclusive right.
Renders protection to the broadcasts themselves, but does not require originality, nor regulate the ownership or protection of the content of the broadcast.
The specific signal right lies exclusively with the radio and television broadcasters and cannot be transferred or extended.

Question 12

What does § 67 of the Danish Copyright Act protect?

Answer 12

Protection is crated for producers of recordings of motion pictures.
There is no demand for originality under § 67.
It is a producers right.
The rights obtained under § 67 must be transferred by contract to third parties.
The producers of the recordings protected under § 67 will not be eligible to receive cable re-transmission revenues, since retransmission is allowed, cf. § 67 (3).

Question 13

Explain the fair use exceptions on Danish Copyright law?

Answer 13

The Danish Copyright law does not specifically recognised the concept of a fair-use doctrine.
Chapter 2 contains several limitations on copyright, eg. private use.
According to section 22 of the Copyright Act, a person may quote from a work which has been made public in accordance with proper usage and to the extent required for the purpose.

Question 14

Explain the BBC v. BSB case

Answer 14

BSB wished to display highlights during the 1990 World Cup - copied from the broadcaster BBC, which held the exclusive rights.
The Court found that showing a goal scoring sequence when reporting the result of a football match was such a normal ting.

Question 15

Explain the Mogens Palle case

Answer 15

TV2 used 8 clips of boxing matches in a critical program about the boxing promotor. However Morgens Palle was not credited in the program.
The Court awarded the boxing promotor renumeration for non-economic damages according to § 83.

Question 16

What is anti-siphoning?

Answer 16

Siphoning is said to occur when an event or program currently shown on conventional free TV is purchased by a cable operator for the showing of a subscription cable channel
Depriving the public from watching sports events.

Question 17

How is anti-siphoning regulated in Europe?

Answer 17

The Audio Visual Media Services Directive

Question 18

Was does art. 14 of the AVMS Directive regulate?

Answer 18

Securing anti-siphoning and that society is not deprived from events of major importance.
Each Member state shall draw up a designated list of events.
Member States must notify the Commission about measures being taken in order to comply with art. 14.

Question 19

Are events of major importance for society per se sporting events?

Answer 19

No, it might also be royal weddings etc.

Then event has to be sold on an exclusive basis.

Question 20

Which events are typically events of major importance for society?

Answer 20

Olympic Games, FIFA World Cup, European Championship in football etc.
Denmark has also included the Olympic Winter games.

Question 21

Explain the TV Danmark case

Answer 21

Concerning 5 away qualifying matches of the Danish national team for the 2002 World Cup.
TV Danmark had exclusive rights.
TV Danmark refused to share its rights, since the implementation of the Television Without Frontiers Directive implementation in UK - allows other television stations to get another chance - but they had not used this chance.
TV Danmark lost the case.

Question 22

Can you list every game of a world cup is events of major importance?

Answer 22

Yes, UEFA/FIFA case - Member states are entitled to choose freely whether all matches should be on the designated national list.

Question 23

How is short news reports in television broadcasting in EU regulated?

Answer 23

In art. 15 of the AVMS Directive.
Member states must ensure these objectives in their national legislation.
Essential in order to safeguard the fundamental freedom to receive information and to ensure that the interests of viewers are fully and properly protected.
Short news, quotation of identity of source.

Question 24

What is the doctrine of commercial misappropriation based on?

Answer 24

The belief that nobody should be permitted to rip off the fruit of the labor and expense of the creator hereof.

Question 25

Explain the International News Service v. Associated Press case

Answer 25

Regarded hot news - news which still possesses commercial value.
INS had unfairly competed with AP by copying breaking news gathered by AP.

Question 26

Explain the Pittsburgh Athletic Company v. KQV case

Answer 26

The leading case in regards to the commercial misappropriation doctrine. Pittsburgh had licensed the exclusive rights of radio to General Mills. KQC broadcasted play-by-play descriptions of the Pittsburg games. It acquired its information from its own paid observers outside the ballpark.
The Court held that Pittsburgh had a property or quasi property right in the new by reason of their creation of the games, the control of the ballpark etc.

Question 27

What did the Court state in the Loeb v. Turner case

Answer 27

That the actual happenings of each day, including sports events, become parts of the facts of history immediately upon their happening. News of them cannot be copyrighted.

Question 28

Explain the Motorola case

Answer 28

Facts:
› Motorola had invented a small portable electronic beeper called “Sports Trax”, which continually displayed update real-time information about NBA-games in progress, and launched to the market.
› The technology relied upon data from a unit called STATS, which watched and listened to television/radio broadcasts of the games and transmitted scores, match stats, etc. to Sports Trax.
› Meanwhile NBA was about to develop a similar product; “Gamestats”.
› NBA filed lawsuit arguing that Motorola’s misappropriation of “game-in-progress-news” were causing losses in the selling of tickets to the games – and that the NBA’s business opportunities was restricted.
Ruling:
› Court reached to the conclusion that a hot news “misappropriation claim” involved necessary extra elements and would, therefore, not be pre-empted right away.
While the product offered by Motorola and STATS was a derivative of the NBA’s work, it was not similar to
creating substantial threats to the NBA’s existence.
• Moreover, it held that Motorola’s product was not a substitute for attending or watching an NBA game.

Question 29

Explain the DBU case

Answer 29

Facts:
› DR had an exclusive agreement with DBU about the televised transmission from football matches in the Danish tournament.
› The agreement did not specifically regulate a right to radio broadcast “game-in-progress-news”, and therefore misappropriation was tested in court.
Issue:
› DR took the position that anybody inside or outside the stadium had the right to freely report the game to the public.
› DBU maintained that such transmission could lead to a reduction in spectator revenues, and fans would stay at home.
Ruling:
› Supreme held in favor of DBU stating that DBU had the right to oppose the transmission of game-in-progress news before the end of the match, regardless of how the news had been provided.
› In arriving at that conclusion, the Supreme had used principles similar to the misappropriation doctrine.

Question 30

Explain the DBU and DPL v. TDC and Bold.dk case

Answer 30

Facts:
› DR held (and still holds) the license from DBU to radio broadcast the Danish Premier League.
› Bold.dk gathered game-in-progress information from authorized DR’s radio broadcasts.
› Bold.dk sold the news to TDC, which was already available to the public via radio broadcast.
› DBU and the Danish Premier League clubs filed lawsuit against TDC and Bold.dk arguing that the retransmission required their consent.
Ruling:
› The High Court refuted DBU and DPLC claims stating that the protection rendered in 1982 in the DBU-case could not be extended so far as to protect game-in-progress-news that had been made available to the public in a valid agreements between the plaintiffs.
› The Supreme Court affirmed this decision and added that this result would be the case regardless of the economic interest that the appellants may have had in the opposite result.

Question 31

Explain the Boston Athletic case

Answer 31

The case suggested that the organisers of the Boston Marathon had no property or quasi property right in the event, because it was held at a place where the public had free access.

Question 32

What did the Court rule in the Wichita case?

Answer 32

That Wichita State University had the right to broadcast the sports event into their home territory regardless of it being a home or away game. The Court considered this to be an exclusive right.

Question 33

Is the ownership of broadcasting rights regulated in EC law?

Answer 33

No, it has to be decided according to national law of the Member States.

Question 34

How is the situation in Denmark in regard to ownership of broadcasting rights?

Answer 34

Both the clubs and the sports federation responsible for the championship tournament jointly were beneficiaries of the property rights in the sports event - common ownership.

Question 35

How is the situation in regard to ownership of broadcasting rights when home-and-away matches are played?

Answer 35

The home team possesses all exclusive rights including the right to televise the match to the opposing team’s home territory.

Question 36

What has UEFA now agreed on?

Answer 36

To centralise all media rights of the FIFA World Cup and the UEFA European Championship.
Invitation to submit offers.