Evening the odds in the fight against copyright piracy

Back in September 2018, we saw the European Parliament adopt its position on the proposed EU Directive on Copyright (the ‘Directive’) in the Digital Single Market. The progress of the overall directive has attracted significant attention and has been the source of prolonged debate with regards to the competing rights of copyright holders and the major internet tech platforms (Facebook, Twitter, YouTube etc.).

Indeed, last year, more than 70 well-known industry names, including web inventor Tim Berners-Lee and Wikipedia founder Jimmy Wales, signed an open letter opposing the proposal on the grounds that it effectively amounted to a veiled form of censorship. However, besides its most controversial Articles 11 and 13, there is one provision which was introduced at a late stage and which has managed to go relatively unnoticed amongst the debate – a new exclusive right for sports event organisers.

As the TV rights to major sports properties have become increasingly valuable, sports rights holders have found themselves faced with an escalating battle against online piracy services. These efforts have been hampered by the fact that sporting events do not themselves benefit from copyright protection. Organisers have therefore needed to rely on other intellectual property (IP) rights in order to protect and monetise their events, such as copyright-protected material contained within a TV signal.

However, the protections provided by existing IP laws are limited. For example, if an event organiser films a football match, it can own the copyright in the footage it creates. But, at present, copyright law does not prevent spectators and fans from creating their own videos at events and posting them online.

Evening the odds

The new proposal for Article 12a provides that only the organiser of a sports event has the right to reproduce and make available footage of its events. This could have far-reaching repercussions, as footage could potentially include photo and audio, as well as video. If the proposal is successfully implemented into the final directive, sports event organisers hope it will prove to be a valuable tool in their fight against the pirates.

On the other hand, there have been a few objections to this new proposal as the right would give sport event organisers an unprecedented amount of control over what fans can do at an event and this could mean that fans are in breach, for example, if they post a ‘selfie’ at an event on a social media platform.

If Article 12a does come into force in something like its current form, it will be interesting to see what impact it has on the growing esports industry. Whereas in a traditional sport there is no owner of the underlying copyright in the game being played itself, in esports the publisher of the relevant video game owns the copyright in that game.

The question then arises as to how, if esports qualifies as a sporting event for the purposes of the directive, the rights of the publisher of the relevant game will be measured and balanced against the rights of any third party organising an esports event under Article 12a. The European Commission, Parliament and Council have set themselves the task of agreeing the final form of the directive in early 2019. It will be interesting to see, therefore, whether there will be wider support for Article 12a outside of Parliament, and whether it remains in the final approved legislation.

Author: Georgie Twigg, Associate in the Media, Entertainment and Sports Group at International law firm Bird & Bird

A former Olympic gold and bronze medalist at the 2016 Rio Olympics, Georgie Twigg MBE has worked as an associate in the media, entertainment and sports group at international law firm Bird & Bird for the last two years