10 October 2015

EU sports events and IP

'The Protection of Sports Events in the European Union: Property, Intellectual Property, Unfair Competition and Special Forms of Protection' by Thomas Margoni comments on
some of the legal tools available to organisers of sporting events under EU law and the law of EU Member States. The focus is on remedies based on property rights and contracts, as well as on intellectual property rights, unfair competition rules and so called “special” forms of protection. As it is well known, in fact, following the ECJ ruling in Premier League v QC Leisure, sporting events as such do not qualify as works under EU copyright law. Nevertheless, remedies based on both traditional and new forms of property, IP and cognate rights can still offer powerful forms of protection to sports organisers. First, many sports events take place in dedicated venues on which sports organisers can claim exclusive use rights and thereupon develop conditional access agreements (i.e. “house rights”). Second, the recording and broadcast of sporting events may give rise to a variety of intellectual property rights, especially in the field of copyright and related rights. Third, unfair competition rules, and in particular misappropriation doctrines, have been invoked to protect sporting activities from unauthorised copying. Fourth, special forms of protection have recently been devised at the national level in order to offer an additional layer of rights protecting sports organisers. The article argues that even in the absence of a dedicated EU harmonised right tailored to sports events, the current legal framework is more than adequate to offer protection to the investments that the sport industry is making in this sector. The article also points out that national initiatives in the field have so far proven of little practical relevance and, as a matter of fact, have the potential to clash with the general EU legal framework.
Margoni concludes -
From the analysis developed in this study, it emerged that the exclusivity so constantly sought by sports organisers and the media sector is commonly reached thanks to the mix of exclusive rights to use the sport venue and conditional access contracts. The latter are employed to regulate not only access but also the types of activities that the fans, the media and broadcasting organizations are allowed to perform once in the stadium. EU Member States commonly recognise this default form of protection also known as “house right”. Whereas the “house right” received explicit recognition only in a few Member States it can be safely assumed that it is available in all of them. The reason has been already identified and lies in the fact that the “house right” is nothing else than a “brand name” for a basic hermeneutic construction based on two main pillars of modern legal systems: property rights and contracts. It would certainly be surprising if a EU Member State, or any other country, did not give recognition to basics fundamental rights such as property and personal autonomy. As a matter of fact, evidence points to the opposite direction, that is to say, to a general recognition of the interests of sports organisers based on property plus contracts, as recently confirmed by AG Jääskinen in its 2013 Opinion. If a limit to the “house right” has to be found, it would be in the fact that remedies based on contracts do not generally possess third party effects. This is however a natural and obvious consequence of the basic principle of privity of contracts. Nonetheless, it must be borne in mind that the main feature of the “house right” is that to be based on a mix of real and personal obligations. This mix greatly empowers the effectivity of contracts: while it cannot of course add to them third party effects, it makes them a sine qua non condition for a licit stay in the sport venue.
In addition to the house right, copyright and related rights are generally available to sports organisers. The decisive factor with regard to these rights, is that they cannot protect the sport event as such , as established by the ECJ. However, most if not all of the forms of use of those sports events (recording, broadcast, webcast, fixation, etc) are in fact acts that are usually protected by relevant copyright or related rights. Among the latter, some Member States feature special forms of neighbouring rights protecting the organisation of events, however, this protection is conditional to the presence of a work of authorship executed during the event. Whereas it could be argued that there is no much difference between the organisation of musical concerts and that of a sport match, the rule is clear and has not given rise to particular interpretative problems, although the situation in Portugal seems still debated.
Unfair competition rules and misappropriation doctrines on the contrary do not appear to offer a sound and stable remedy to sports organisers. While their use in the past has lead to some limited success, recent case law seems to have clearly established the principle that the protection of sports events has been pre-empted by the national legislator who decided not to offer copyright protection to sports events as such. This finding points in favour of the view that unfair competition remedies cannot be used as default substitutes of intellectual property protection.
Finally, five Member States offer additional forms of protection, usually in the form of special provisions in sports codes or in related acts. One of these Member States has amended its copyright act giving formal neighbouring right recognition to such an intervention. It does not seem that these special forms of protection add much, if anything, to what already available to sports organisers, with one significant exception. The French model includes a right to consent to bets, a solution that is currently under discussion at least in another MS, the UK. Putting any consideration regarding the speciality or ethical nature of sports (in particular of grass-root sports) aside one aspect has to be clarified. Traditional copyright theory never contemplated a right to consent to bets. Nor it seems easy to justify its inclusion on the basis of the current structure or of the normative function of copyright law. If a place for such a right to consent to bets exists, it has to be found outside the realm of (intellectual) property rights. Whether this is possible at all in the light of EU rules on competition law and freedom of provisions of services is yet to be proved