Amending the Copyright, Designs and Patents Act 1988 to include sporting events

Thomas Brown

On 2 December 2021, the House of Lords is scheduled to hold a short debate tabled by Viscount Astor (Conservative). He will ask the Government what plans it has to “amend the Copyright, Designs and Patents Act 1988 to include sporting events”.

What are intellectual property rights and why are they important in sport?

The World Intellectual Property Organisation (WIPO), a specialised agency of the United Nations, explains that intellectual property (IP) refers to “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”. These creations, works and designs are protected by IP rights such as patents, designs, trademarks and copyright.

The WIPO has argued that sport shows IP rights “in action”. For example:

Patents encourage technological advances that result in better sporting equipment. Trademarks, brands and designs contribute to the distinct identity of events, teams and their gear. Copyright-related rights generate the revenues needed for broadcasters to invest in the costly undertaking of broadcasting sports events to fans all over the world. IP rights are the basis of licensing and merchandising agreements that earn revenues to support development of the sports industry.

The WIPO has also argued that IP rights lay “at the heart of the huge commercial opportunities offered by the world of sport”. It has said:

IP rights (especially patents, trademarks and broadcasting rights)—and the legal protection they give—help to secure the economic value of sport. This in turn stimulates growth of the sports industry, enables sporting organizations to finance high-profile sports events, and provides the means to promote sports development. Business transactions related to sponsorship, merchandising, broadcasting and media deals are all built on IP rights. The sports industry has a growing impact on the world economy, creating jobs, investing in public infrastructure and mobilizing resources.

The WIPO has observed that revenues from broadcasting rights in particular can be crucial to many sports bodies and competition organisers. It has said that for most sports organisations, the “sale of broadcasting and media rights is now the biggest source of revenue”. This provides the funds needed to “finance major sporting events, refurbish stadiums, and contribute to the development of sport at grassroots level”. Furthermore:

The royalties that broadcasters earn from selling their exclusive footage to other media outlets enable them to invest in the costly organisational and technical infrastructure involved in broadcasting sports events to millions of fans all over the world.

In Europe, the Sports Rights Owners Coalition, a forum of international and national sports bodies and competition organisers that campaigns on rights issues, has similarly argued that sporting events “contribute substantially to the wealth and wellbeing of countries”. The group has argued that protection against rights infringements is “key to a sustainable financing of both professional and grassroots sports”, and as such has called on governments to “fully recognise, protect and promote the special nature of sport and sports rights”.

Copyright and sport: legal background

Despite the increasing economic value of sports worldwide, the IP legal landscape remains fragmented globally. In an article published in a 2019 issue of the WIPO Magazine, solicitor Stephen Townley explained that this created “complicated issues, not least because there is no single approach to the way in which content is covered by the IP laws of different countries and associated rights are protected”.

In his article, Mr Townley noted that a 2011 judgment by the Court of Justice of the European Union (CJEU) found that sporting events themselves could not be protected by copyright. This was because events could not be “regarded as intellectual creations classifiable as works” for the purposes of copyright protection under EU legislation. The judgment noted this was particularly the case for “football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright”. However, the judgment added that member states could protect sporting events through domestic legislation:

Nonetheless, sporting events, as such, have a unique and, to that extent, original character which can transform them into subject-matter that is worthy of protection comparable to the protection of works, and that protection can be granted, where appropriate, by the various domestic legal orders […] Accordingly, it is permissible for a member state to protect sporting events, where appropriate by virtue of protection of intellectual property, by putting in place specific national legislation, or by recognising, in compliance with European Union law, protection conferred upon those events by agreements concluded between the persons having the right to make the audiovisual content of the events available to the public and the persons who wish to broadcast that content to the public of their choice.

At the time of the judgment, the UK’s Copyright, Designs and Patents Act 1988 permitted an exemption under which venues that did not charge an entry fee could publicly show films contained in broadcasts. A government summary of the situation published in 2015 explained the exemption as follows:

The Copyright, Designs and Patents Act 1988 (CDPA) provides copyright owners with a range of rights allowing them to control the use of their works and to seek payment for this use. Among these rights are rights to control the showing, playing and other communication of works to the public. This includes the showing of a film or broadcast to a public audience.

Section 72(1) sets out an exception to these rights. It allows organisations which do not charge for admission to show television programmes to the public without permission from the owners of film and broadcast copyright in those programmes.

The 2011 CJEU judgment case tested the scope of the section 72 exemption. It highlighted both legal and policy issues in the process, including an inconsistency between EU and UK law. The case was the result of legal action brought by the English Football Association Premier League (FAPL) against pubs that were using unauthorised satellite decoder cards to show live Premier League football matches. A 2015 government summary explained that the CJEU ruling deemed that pubs and similar commercial premises were not permitted to show television programmes containing original creative works, such as graphics, music, and cinematographic works, without the appropriate commercial subscription. This included football matches. However, it added:

When the case was returned to the national courts, it was found that, notwithstanding that it constituted a communication to the public, the showing of certain audiovisual content, including the match footage itself, was permitted as it was protected only by film copyright, which fell within the exception provided by section 72(1) CDPA.

Sports right holders such as FAPL therefore rely on enforcement of the copyright in their graphics and musical works when seeking to prevent the showing of football matches without a commercial licence. They cannot rely on their film copyright, which falls within the scope of section 72.

As a result, in 2015 the Government consulted on narrowing the scope of section 72 so that it could not be “relied on by commercial premises seeking to show exclusive subscription broadcasts in public without an appropriate commercial viewing licence”. Respondents suggested the proposal was “overly complicated and said that it would continue to cause confusion”.

In the light of these concerns, in March 2016 the Government consulted on “removing the reference to film completely from the section 72 exception”. In May 2016, the Government reported that all 10 of the organisations that had responded supported the proposal. The Government subsequently introduced the Copyright (Free Public Showing or Playing) (Amendment) Regulations 2016 to give effect to the change.

In a report published in May 2016, the House of Lords Secondary Legislation Scrutiny Committee explained the purpose of the regulations as follows:

These regulations, laid by the Department for Business, Innovation and Skills (BIS), amend the 1988 act to remove section 72 (1) (c) which allows the free public showing or playing of a film included in a broadcast. In the Explanatory Memorandum to the regulations, BIS explains that the amendment is being made following a series of decisions in a case brought by the Football Association Premier League Limited, against pubs which were using unauthorised satellite decoder systems to show live Premier League football matches, and firms supplying these satellite decoder systems. Responses to consultations carried out in 2015 and 2016 supported this change to the law, in the interests of clarity and of creating a more level playing-field for those pubs and other organisations that take out legitimate television subscriptions.

The regulations were subject to the negative procedure and came into force on 15 June 2016.

Five years later, in June 2021, the Government published a post implementation call for views on the measure. The call was open until August 2021. The Intellectual Property Office is currently analysing feedback received.

Related issues

Burden on businesses

Concern has been expressed that the measure may have increased the burden on small commercial businesses by allowing rights owners of broadcast content to seek a licensing fee for publicly-broadcast material, irrespective of whether a commercial subscription or free to air broadcasting was in place.

The Government explained in its original 2015 consultation that pubs and other hospitality venues that used non-commercial subscriptions instead of commercial subscriptions to broadcast content were “likely to be already breaking the law (to the extent that they communicate unauthorised authorial copyright content, such as artistic or musical works)”. It said that it did “not monetise costs to those performing unauthorised activities” and repeated this statement in the Impact Assessment on the 2016 regulations.

Journalism

In respect of sports journalism, the Government has explained that use of short extracts of copyright protected sports content by news providers and journalists is subject to fair dealing exceptions in the Copyright, Designs and Patents Act 1988:

This provides for the use of copyrighted works, including extracts of TV broadcasts, for the purposes of criticism, review, quotation or news reporting. Fair dealing exceptions must be applied to each case based on its own circumstances and can apply to online use as well as in traditional media. Where there is any uncertainty in the application of the exceptions, some industries choose to develop their own voluntary codes.

The Sports News Access Code is a voluntary, broadcaster-owned initiative intended to provide clarity and confidence where broadcasters use each other’s content under the current legislation.

Online copyright infringement: attitudes

The results of the Intellectual Property Office’s most recent online copyright infringement tracker survey were published in March 2021. It found that users of illegal content sources mostly fell into two groups:

‘Cautious infringers’: those who worry about infringing the law and the risks of illegal activity.
‘Savvy infringers’: those who are more tech savvy and knowingly access content illegally without much concern over related dangers or consequences.

The survey concluded there was “potential to explore messages around risk of greater legal action and consequences” for the ‘savvy’ infringer group. However, it added “this is not currently seen as a viable threat but was mentioned by a few as a potential deterrent if enforced more widely”.