LEVELLING THE LEGAL PLAYING FIELD- HARMONIZING SPORTS AND IPR

INTRODUCTION

The symbiotic relation shared between sports and intellectual property rights (IPR), is often overlooked by the majority of the population. It is however, this bond between the seemingly unrelated, that has changed the playing field of sports from what was merely recreational and transformed it into a booming global commercial market.

Sporting activities have developed down the ages into the present period of corporatization, contributing a sizeable figure of 1% to the global GDP. 

The universe of sports fosters creativity and boosts innovation at full-swing, through the invention of new technologies that improve different sports, techniques that make performances more desirable, fitness equipment and platforms that showcase talent.

Granting and protecting intellectual property rights to these new inventions and all other elements of sports, serves as a catalyst that stimulates profitability for athletes, broadcasting companies, equipment suppliers as well as all other stakeholders involved in the process.

Unfortunately, this lucrative field is often neglected, resulting in the dire need of legislations and leaving a gaping void in regulations protecting such IP rights.

IPR may be classified as the most valuable assets in the sporting industry that exist in several shapes and forms, starting from patent-protected and copyrighted developments, broadcasting rights of sporting events, protected personality rights, trademarks protecting the goodwill of teams and companies dealing with sports equipment, to IPR relating to inventions in the field of energy drinks, medicines and tools improving performance in sports. It, thus, becomes essential to make such intellectual property rights enforceable by creating distinct laws that recognise them, classify them and put mechanism in place that penalise for their infringement. 

The present world views sports as much more than a person’s passion- it has become a full-fledged ambition for businesses to thrive. Sporting events are key in spreading harmony, communication Sports associations are involved in a wide variety of activities including branding, merchandising, licensing, sponsorship and the like. Alongside these sports associations and their primary activities, are several ancillary businesses that are involved in production, broadcasting and advertising through celebrities or teams using their goodwill.

Sportsmen are valued for their talent not only in the field but also beyond, on screens and hoardings, as they represent several brands and companies.

Every sports team has a distinct logo, often theme-songs and catchy taglines attached through which they create their own identity and connection with the target audience.

All of the aforementioned elements of sports generate the need for strong and efficient intellectual property rights. Keeping the current legal scenario in mind, the rate at which newer intellectual property rights safeguards are being put in place is much slower than the rate at which new, innovative techniques are developing. In short, the legislative infrastructure is not able to keep up in pace

PLAYERS IN THE LEAGUE- ELEMENTS OF IPR IN SPORTS

In order to analyse the need for intellectual property rights in sports, it is essential to glean out the various constituents of sporting activities that involve IPR.

While the average person may deem the two to be unrelated, it is quite to the contrary. Most elements of sports involve an application of IPR in their regular use. They can be categorised under several divisions, including but not limited to copyrights, patents, trademarks, trade secrets and personality rights.

Sports teams contribute greatly to raising economic value through the selling of tickets and merchandising in retail outlets. There is a booming industry of sporting goods that generates revenue through the manufacture and selling of commodities including sports apparel, sporting equipment, jerseys, and electronic wearables.

A crucial part of the sporting universe is handled by sports broadcasters that make the events available to the general public through a wide array of broadcasting platforms such as television, websites and records.

IPR plays an important role in sports not only in the international and national markets but also in small-scale, local markets. Intellectual property rights are not governed by a single all-encompassing law, and are constituted by several parts.

Trademarks, for instance, are ‘The distinctive design, logo, graphics, words and symbols used to identify a product or service that guarantees the genuineness of the item’ They are popularly used in the sporting industry in association with creating brand loyalty and building such brand.

Trademarks include the names of teams, leagues, associations and their tag-lines, logos, and the like. They have to be registered under the Trademarks Act, 1999. Primarily, trademarks help in creating the identity of a brand, and helps the user or audience in associating the brand with a particular label. They further contribute to the economic value of the brand by enabling sponsorship.

Registration of trademarks, is also extremely beneficial as apart from the aforementioned advantages, registration enables the holder to seek both civil and criminal remedies in case of infringement, as opposed to common law remedies in case of an unregistered trademark. 

Copyrights are ‘The right of literary property as recognized and sanctioned by positive law. A right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.’

In simpler words, copyrights are means of protecting ones ideas once they are in the form of expressions. The owner has exclusive privileges over the product for a specified or limited period of time. In the context of sports, copyrights may be created over theme songs associated with teams, promotional material and literature involved in the sports, artwork in team logos, as well as movies and biographies made out of them. 

In addition to trademarks and copyrights, patents are a kind of intellectual property used to safeguard any new creation that may have ‘industrial application’ or any methods of the like. Patents can be granted not only on products and tangible inventions, but also on techniques and methods that help attain desired results.

For instance, Alberto “Beto” Perez took the global fitness market by storm with his new and innovative way of exercising, known as ‘Zumba’ in the early 1990s. This idea branched out over the world and has today, become a globally known technique. 

A less commonly known form of intellectual property is a trade secret.

Trade secrets offer ample of strategic advantage to teams and members by granting them exclusive access to their formulae, their plans and tricks developed, that offer them an edge in their field.

Although they are comparatively new and have very few concrete legislations protecting them, trade secrets are an up and coming mechanism in generating revenue through innovation and mindful thinking. For instance, a particular way of shooting an arrow, or a certain arrangement of the football players in a field may, in some cases, qualify as a trade secret.

Unfortunately, it is quite challenging to devise suitable legislations protecting trade secrets. India, for instance, lacks any such statutes in place. The only resort to protecting such information is the inclusion of confidential clauses in various agreements signed between players and members in a team. Such a scenario demands an adequate legislation to be framed to prevent large amounts of losses on the economic scale. 

A game is made of its players and they are often the most important assets. When in comes to sports on a global scale, players are celebrities who are loved and idolised by the masses. They have extreme intrinsic value and like all things that have value, they have the potential to yield large profits. These forms of revenue may be created through team representations, brand promotions, advertisements and the like. In today’s world, marketing has become a key component for merchandising, be it for sports equipment or apparel brand-building. For instance, Virat Kohli became the ambassador for Manyavar, following which it has become a household name in India and the go-to brand for Indian ethnic wear. 

The aforementioned intellectual property constituents are elements that exist in almost all distinct activities associated with different versions of sports across the world. In the Indian context, sports like cricket, hockey, and the recent formula one car racing have spread in the commercial sports market and stimulated high demand from the consumers. Thus, the application of sports in businesses is not a concept unique to only developed countries, but applies in case of the world as a whole. 

GEARING UP AGAINST THE RIVALS- NEED FOR PROTECTION FROM INFRINGEMENT

With the existence of intellectual property rights, the need for their protection becomes imperative. There are inadequate legislations available that protect the IPR in sports. Especially, in India, there are no exclusive statutes that deal specifically with intellectual property rights with regards to sports. This leads to their rampant infringement and counterfeiting.

Intellectual property rights along with rights of ownership, also give the right to licence, sell and buy such rights. The selling and licensing of such rights are a source of revenue for their holder. It is thus, evident that when the rights are not sufficiently protected, it leads to a substantial loss of revenue for their owner. The initial step to be taken by the creators shall be to register their products or ideas in order to avail a plethora of benefits as per certain statues. Although India does not have specific legislations protecting IPR in the field of sports, there are general intellectual property laws that may be apply in the respective scenarios.

For instance, The Trade Marks Act, 1999 can be applied in case of registered marks, including names, brand logos, event banners, and tam or leagues identifiers. Similarly, the Copyright Act, 1957 has provisions for registration of ‘original literary, dramatic, musical and artistic works, cinematographic films and sound recordings’, and additionally may be extended to include the protection of broadcasting and performers’ rights. These rights include recording rights of commentaries and visual sports as well as the photographs captured during the event. The clothes, apparel and merchandise that are specifically creation in relation to particular sports or a team, including their footwear, helmets, and equipment may be brought under the purview of the Designs Act, 2000, that accounts for their protection.

A gaping void exists when it comes to the protection and registration of trade secrets, not only in India, but also in developed parts of the world. The only resort for the creators of trade secrets are the agreements that are signed preserving their confidentiality and restricting them from being shared with the public at large. India, unlike the United Kingdom, does not have the provision for the protection of ‘sports moves’ under the Copyright Act.

Sportspersons are not included under the Act as they do not qualify under the definition of ‘performers’ that includes an ‘actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.’

However, if the judiciary were to remove such ambiguity by following the rule of ‘ejusdem generis’, the performance of the sportsmen could be included under the definition as they would be particular words ‘pertaining to a class, category, or genus’ which are to be construed as being unlimited to those general words, and instead include words of the same kind as specified. There exists, all over the world, a frequent practice of ‘passing off’ that involves the 

Broadcasting rights are another important area of sports law that involve IPR.

They are rights granted for the screening of the events and performance in sports. Although they have been recognised as a separate category under The Copyright Act, 1957, these rights are subject to vehement infringement. Broadcasting rights are usually bought by companies reserved exclusively for the purpose of broadcasting, that is, making these footages available to the audience across the globe. The Act defines the infringement of broadcasting rights as, ‘any person without the license from the owner re-broadcasts the broadcast; or causes the broadcast to be heard or seen by the public on payment of any charges; or makes any sound recording or visual recording of the broadcast; or makes any reproduction of such sound recording or visual recording where such initial recording, or sells or hires to the public or offers for such sale or hire, any such sound recording or visual recording is said to have infringed broadcasting rights’. There are also the provisions of penalty imposed on the infringer of up to 1 crore rupees, under Section 43 of the Information Technology Act, 2000. The digital world has undergone a complete makeover in the last decades, and the need to protect these rights have increased drastically.

A common ground was created in the global platform through the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) of 1961, protecting the right to broadcast and re-broadcast up to 20 years, with exclusive ownership However, piracy and illegal documentation are problems that have seeped into digital commercialization. The World of entertainment has become increasingly fragmented and live sports have become a wild attraction for most viewers. Often, due to easier and more accessible methods of screen sharing and recording, these live sessions are shared without authorization, costing a fortune to the broadcasting companies.

A certain BBC survey highlighted that even in countries like the United Kingdom, over a third of League matches are watched through pirated streaming sites in the form of live matches. Even the Chinese copyright law falls short in the protection of broadcasting rights, causing the economy to undergo huge losses.  The World Intellectual Property Rights Organization (WIPO) has classified broadcasting rights as a multi billion dollar global industry.

Although certain laws exist that protect this booming market, the implementation in often incompetent to recognise illegal acts and penalise them effectively. Another problem that arises is the disparity that is created within the population that allows some people to enjoy the screenings free of cost while imposing charges on others. Therefore, it is essential to create the perfect harmony between the protection of broadcasting rights and the access to information and programmes to the masses. An effective tool in curbing the ever-widening piracy would be to create authorities for detecting and blocking pirated websites. Additionally, recourse mechanisms should put in place that are not time-consuming and compensate adequately. 

The form of redressal to the owners and right holders on the event of infringement, are both civil and criminal. However, the fastest and most common means include the imposition of injunctions on the accused, compensation made available to the owners of the intellectual property rights and the return of material, if required. Mechanisms in the Courts are, however, extremely time consuming and often inadequate. 

CONCLUSION

The growth of the sports industry and its increasing commercialization has made it obligatory to evolve the legal scenario to supports its infrastructure. It has been established how the unrestrained infringement of intellectual property rights have deprived sports associations, merchants, and their ancillaries of masses of revenue and profits. It is imperative for such losses to be recovered. This result can only be achieved by devising a commercially and logistically viable plan to establish sets of laws that will bridge the lacuna created by their lack.

The Indian legislature should strive to address the discrepancies by incorporating international agreements and treaties in national legislations through which it can protect the various patents, trademarks, copyrights and trade secrets involved in the field of sports.

The sports market, in fact, large and economically viable enough to have an entire section of laws dedicated to it. There also have to be systemised redressal mechanism and authorities in position to address the illegal and nefarious activities that are prevalent today. Laws, without their awareness and proper implementation would be irrelevant.

Thus, there should be committees formed to acknowledge such issues and camps held to spread awareness. At a time of growth and explosion of technology and new ideas, it can no longer be denied that intellectual property rights are an integral part of sports- one can’t be distinct from the other on a commercial platform.

Therefore, an urgency should be created for the creation of competent laws, that support sporting activities, ultimately bringing the whole world together in the spirit of harmony and recreation.

Written By:

Aishleen Sahni