Protecting the Crown Jewels
For many companies in Asia Pacific buying sports rights from rights holders such as the FA Premier League (“FAPL”), those rights represent the crown jewels in a rights portfolio, and come with a price tag to match. These price tags reflect the fact that many traditional sports rights holders still look to broadcast revenues as the key method for funding and growing their sport. Accordingly, for both those who buy the rights and for those who sell them, there is a business imperative in preventing unauthorised third parties from reproducing and disseminating content by other means.
However, in the fast-moving world of digital and social media, unauthorised streaming and broadcasting of major sporting events has become commonplace. For broadcasters and rights holders, tracking down and preventing infringement can all too often seem like a game of cat and mouse, where the mice are winning.
Rights and Wrongs
Darren Sharpe, a mechanic based in Brisbane, provides an interesting example of the cat and mouse game in action. Australian sports fans will be familiar with the Mundine/Green boxing rivalry, which has been keeping audiences entertained for some time. Their recent fight, alongside an interesting undercard, was being broadcast through Foxtel’s pay-per-view service in Australia for AUD$59.95. Sharpe, who had paid for the fight to watch at home, took the innovative step of taking out his mobile phone, pointing it at his TV and then streaming the result to the world for free via the “Facebook Live” streaming service. Small fry for a major broadcaster, one might think. That is until you hear that, at its peak, Sharpe had around 111,000 viewers of his unauthorised live stream.
Foxtel’s reaction to this was equally as innovative. One of their employees (presumably alerted to Sharpe’s identity by the watermarking on his TV’s feed and his Facebook profile) picked up the telephone and asked him to stop. The video that Sharpe posted of this conversation online, which went viral, highlights an interesting point: even though the broadcaster was aware of the fact of infringement and the identity of the infringer, unauthorised broadcasts are rarely shut down quickly or easily.
Sharpe eventually heeded Foxtel’s words and stopped streaming at the end of one of the most anticipated undercard bouts. Copycats who continued to re-broadcast through similar means had their pay-per-view subscriptions systematically interrupted or revoked by Foxtel, although significant portions of the event were still available after Sharpe decided to end his stream.
Innovation and Litigation
One key question from a broadcaster and rights holder perspective is to ask what can be done in legal terms to stop this kind of thing happening?
Although there are legal methods of recourse against infringers (which vary by jurisdiction), these tools are often only of use after the infringement has occurred and, most importantly, after the commercial damage to things like pay-per-view revenues has been done.
The traditional method of shutting down infringers in many common law jurisdictions – by issuing “takedown notices” to the relevant websites – is by its nature reactive and doesn’t always result in infringing material being taken down, particularly where notices are issued to anonymous owners of off-shore websites with lucrative advertising capabilities attached to their streams.
This perhaps explains why, in the example above, Foxtel chose to prioritise using a practical deterrent.
In other key jurisdictions in Asia Pacific, the legal tools for combating infringement are, like Australia, often more reactive than preventative.
In Singapore, whilst there hasn’t been much case law on the subject of sports rights protection, the legal and regulatory regime means that the tools for protection are very similar to those in other common law jurisdictions. The rights holder/broadcaster would have to establish that there is copyright in the broadcast, and would then go about protecting it by taking action for breach, whether through injunctions, “take-down notices” or otherwise.
In China the situation is a little different, with copyright and unfair competition laws providing a framework for sports rights protection:
- The China Copyright Law provides a theoretical basis on which broadcasters and rights holders can protect their product. Rights-holders have trumpeted the recent ruling of the Chaoyang district court in Beijing, which held that the picture recording of the live game is of sufficient creativity to be protected as copyrighted work, because the setting of cameras from different angles and on-site selection of different images for live broadcasting. This may pave the way to sports rights holders being granted greater protection under the Copyright Law to prevent illegal streaming and other similar activities.
- The other key weapon is under general principle of competing in bad faith pursuant to Chinese anti-unfair-competition laws, although with this approach the establishment of “bad faith” (a key requirement from a legal perspective) can be rather difficult, meaning establishing copyright infringement is often the easier route.
Blocking Injunctions: The cat catches the mouse?
Clearly, from the broadcaster/rights holder perspective, the ideal way to deal with infringement is to prevent it happening at all, which is not easy given the proliferation of different methods of infringement.
A recent English case perhaps signals a way forwards in this regard. The case was brought by the FAPL against the six main retail internet service providers (“ISPs”) in the UK, under which the FAPL sought an injunction requiring the ISPs to take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of Premier League footage to UK consumers. FAPL was successful and an order was granted, on and from 18 March 2017, requiring the ISPs to do so.
By disrupting the streaming servers rather than, for example, individual websites, the cat is finally being given the tools to not only catch the mouse, but to actually prevent the mouse leaving the house, so to speak.
Streaming servers are the “crucial link in the chain“, as it is these servers which are accessed by multiple interfaces (websites, set-top boxes, apps and web site add-ons, for example) which then disseminate unauthorised content. By attempting to block these servers, broadcasters and rights holders have found a way to legally prevent a number of forms of infringement before they are broadcast.
The order given by the court is a short term one (lasting only until the end of the current FAPL season), and is intended to test the effectiveness of this type of rights protection. Many jurisdictions in APAC will be watching with interest to see if this strategy works, and to see if similar orders can be granted by their own courts.
Although Mr Sharpe and his Facebook Live stream are a slightly different problem to large off-shore streaming servers, they both highlight the same broad point. That is, broadcasters and rights holders are getting smarter when it comes to rights protection, and are becoming more innovative with the ways in which they do so.
The battle between infringers and broadcasters/rights holders is certainly not over yet, although with rights holders and broadcasters increasingly being given the tools to take pre-emptive action, the game of cat and mouse is about to get much more interesting.
This post was written by Alex Norman (Registered Foreign Lawyer, China and Hong Kong) and David Allison (Partner, China and Hong Kong).
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