Sport and the media: which role does the EU play?

Gianluca Monte

Willy Calewaert Chair Second LectureVUB, Brussels, Thursday, 27 January 2011, 6.00-7.30 pm

Table of contents

1. Sport and the media – an overview2. Regulation of the media at EU level 3. Sports IPR?4. Copyright and neighbouring rights5. IPR vs freedom of information6. Territorial or pan-European licensing?7. Collective selling of rights and EU

competition law8. The EU’s Digital Agenda

Sport and the media – an overview

• Social aspects (stereotypes, representation of violence, etc.)

• Economic aspects:– Main source of income for professional sport in

Europe (Deloitte 2010: “Broadcasting rights continue to be the main source of revenue for the ‘big five’ leagues, with €3,712m (47%) of total revenues coming from this source in 2008/09)

– Sport as decisive source of content for many media operators (see following slides)

GermanyTop 9 prime broadcasts of all time

Source: Wikipedia

1 2010 FIFA World Cup

Germany vs Spain 31.10 million83.20%

7 July 2010 ARD

2 2006 FIFA World Cup

Germany vs Italy 57.66 million84.10%

4 July 2006 ZDF

3 UEFA Euro 2008 Germany vs Turkey 29.43 million81.80%

25 June 2008 ZDF

4 1990 FIFA World Cup

West Germany vs Argentina

28.66 million 9 July 1990

5 UEFA Euro 1996Germany vs Czech Republic

28.44 million76.30%

30 June 1996 ZDF

6 UEFA Euro 2008 Austria vs Germany 28.04 million76.90%

16 June 2008Das Erste

7 The Black Forest Clinic

"Die Schuldfrage" 27.97 million 17 November 1985

ZDF

8 UEFA Euro 2008 Portugal vs Germany 27.70 million78.70%

19 June 2008

9 2002 FIFA World Cup

Germany vs Brazil 27.09 million88.00%

30 June 2002 ZDF

United KingdomMost watched one-off events

Source: Wikipedia

1 1966 FIFA World Cup Final 32.30 30 July 1966 BBC/ITV

2 Funeral of Diana, Princess of Wales 32.10 6 September 1997 BBC1/ITV

3 The Royal Family (documentary) 30.69 21 June 1969 and 28 June 1969

BBC1/ITV

4 Apollo 13 splashdown 28.60 17 April 1970 BBC1/ITV

5 FA Cup replay: Chelsea vs. Leeds 28.49 29 April 1970 BBC1/ITV

6 Royal Wedding of Charles & Diana 28.40 29 July 1981 BBC1/ITV

7Wedding of Princess Anne and Mark Phillips

27.60 14 November 1973 BBC1

8 JFK Assassination – News Broadcast 24.15 22 November 1963 BBC1/ITV

9 1994 Winter Olympics (Ice Dance Final) 23.95 21 February 1994 BBC1

10 World Cup 1998 (England v. Argentina) 23.78 30 June 1998 ITV

Regulation of the media at EU level

• The EU framework (I)– Primary EU law: the Treaty

• Free provision of services (articles 56 to 62 TFEU)• Competition law (articles 101 & 102 TFEU)• Other relevant provisions:

– Judicial cooperation in criminal matters (articles 82 to 86 TFEU)

– Sport (article 165 TFEU)

– Culture (article 167 TFEU)

– Consumer protection (article 169 TFEU)

• The Charter of Fundamental Rights of the EU

Regulation of the media at EU level

• The EU framework (II)– Secondary law: EU Directives

• Regulation of networks:

Telecom package 2009 – implementation by May 2011

– Consumer rights– EU Telecoms Authority– NGA networks

Regulation of the media at EU level

• The EU framework (III)

– Secondary law: EU Directives• Regulation of services: E-commerce Directive 2000

– Country of origin principle– Limited liability of ISPs

Audiovisual Media Services Directive (AVMS) 2007– Country of origin principle– Technological neutrality

Audiovisual services NOT covered by Services Directive 2006

– Other topics: data protection, roaming, radio spectrum, .EU, Safer Internet…

Is sport part of IPRs?

– Sport events are not protected by IPR law: • Copyright and neighbouring rights• Database (ECJ ruling in case ‘BHB vs William Hill’)• Ongoing case in the UK (copyright of databases)

– Applicable framework: trademark law

– Broadcast of sport events is part of IPR: neighbouring rights of broadcasters

– Re-assignment of copyright from rights holders to right owners

Copyright and neighbouring rights - the EU framework (I)

– The EU Copyright Directive (2001) • Harmonisation of copyright laws across the

Member States• Exhaustive list of optional exceptions• Legal protection of technical measures

– The Enforcement Directive (2004)• Minimum level of civil sanctions• Review in 2011• Future Directive on criminal sanctions?

Copyright and neighbouring rights - the EU framework (II)

– The Cable and Satellite Directive (1993)• Cross border transmission of programmes• Country of origin principle

– The Conditional Access Directive (1998)• Main objective: piracy of smart cards• Wider scope?

IPR vs freedom of information – the AVMS Directive (I)

– AVMS adopted in 2007 to replace Television Without Frontiers (TWF) Directive

• Technological neutrality• Linear vs non-linear services• Country of origin principle• Other (promotion and distribution of European

works, product placement, regulation of advertising – see also Directive on Tobacco Advertising)

IPR vs freedom of information – the AVMS Directive (II)

– Events of major importance for society (article 14 AVMS)

• Introduced in 1997 review of TWF• Sport events usually concerned (Olympic Games,

Football World Cup)• Ongoing cases before ECJ (UK, Belgium)

Sports where one or more event is listed, by country

IPR vs freedom of information – the AVMS Directive (III)

– Short extracts (article 15 AVMS)• Objective: public access to information on events of high

interest• Access reserved to broadcasters (exception: intermediaries)• Extracts to be used for general news programmes• On-demand use allowed only if programme offered on

deferred basis by the same media service provider• 90 seconds limit• Possibility of trans-national broadcasting of extracts• No prejudice to Copyright Directive provisions and

exceptions• Alternative measures: access to venues

Territorial or pan-European licensing?

– Copyright licensed on a territorial basis: • Recognition of territoriality of copyright in

audiovisual services by the ECJ (Coditel I & II rulings)

• No country of origin principle for copyright in the E-commerce Directive

• Possibility of granting pan-European licenses established by Cable & Satellite Directive

Territorial or pan-European licensing?

The QC Leisure case (joined cases C-403/08 and C-429/08)

• Main questions:- Definition of illicit device according to Directive 98/84/EC- (Technical questions on Directive 2001/29/EC)- Interpretation of Treaty rules on free movement of

goods and services- Interpretation of Treaty rules on competition- Main issue at stake: grey market- Possible consequences on the market

Top 10 sports programming by viewing across selected markets (2007)

Collective selling of rights and EU competition law (I)

• Market definition– Upstream product markets– Downstream product markets– Geographic markets

• Joint selling agreements• Efficiencies

– Single point of sale– Branding– The creation of a league product

Collective selling of rights and EU competition law (II)

• Cases– UEFA CL (2003)– Bundesliga (2005)– Premier League (2006)

• Remedies– Tendering– Limitation of duration/scope of vertical conracts– No unused rights – parallel exploitation– No single buyer

The EU’s Digital Agenda

– Digital Single Market• Simplify copyright clearance and management –

framework Directive on collective rights management

• Directive on orphan works• Stakeholder dialogue on cross-border and pan-

European licenses• Green Paper on online distribution of audiovisual

works• Reinforce protection of rights