SPORTS INDUSTRY AND IP LAWS: FOCUSING ON COPYRIGHT IN INDIA

INTRODUCTION

When we take into consideration the sports industry then we see that its not only driven by passion, zeal, and courage but innovation and creative ideas too are the key drivers in this domain. In each and every field of sports be it football, cricket, wrestling etc, we see that the inventors and the creators are working tirelessly behind the vail to further up the horizons of creating opportunities and also catering to the enjoyment of the athletes to strive towards a better performing individual in the sports field.

Sports industry has been breaking the glass ceiling of globalized society for a long duration of time which has not only created fans all over the word for the admiration of the sports in general but has also created a huge interest in peoples mind and has been adopted by the same. well recognized sports such as cricket, hockey, tennis, football etc are now not just limited to one territory but are massively played worldwide and due to this inter territorial expansion we see that the role of IP Laws in this field becomes a very important aspect.

As we have already seen that the sports industry thrives upon innovation and creation, so IPR here becomes the promoter and adjudicator to encourage creativity and new innovation in this particular domain by protecting the reputation and also the goodwill that is attached to a brand name making sure that the owner of the IP rights get a fair share of recognition as well as reward for his original ideas and work.

The scope of IP law covers a huge spectrum of sporting events, brands and many more where IPR is seen bestowing IP rights in every section of the sports field and industry . Starting off we can see that copyright here has come into picture when we talk about the broadcasting of any sports event so that it can be easily accessible to the fans of that particular sport worldwide. This broadcasting of the event involves a huge amount of money and also has a script, recitation etc involved which becomes the subject to a copyrighted content. The trademark laws again are seen protecting the goodwill of brands that are involved in such sporting events and lastly, we also get to see that designs too come into the picture by protecting the aesthetic value of each sports article that are involved. Patent laws too are required to protect the used technology for the invention of a particular aspect of a product or any goods or service related to the sports domain.

Here if we take a very basic example of let’s say a sports beverage being used at a particular sporting event then the sports beverage covers a range of IP law and rights attached to it such as the copyright protects the audio and the visuals used for the creation by the broadcasting team to publicize the beverage. Trade mark protects the goodwill of the brand name associated with the sports beverage by differentiating it with other products in the market that are of similar nature. Patent laws protect the technological and innovative advancement that has been used to invent such a beverage and finally we see that the design laws protect the aesthetic design of the sports beverage related to the appearance or packaging etc.

We can see from the above discussion that many IP laws such as Trademark, Copyright, Design  , Personality Rights etc commercialize  and also exploit the commercial component involved in the sports arena . so, we will further discuss the legal framework of IP laws in the sports industry. 

COPYRIGHT IN THE SPORTS INDUSTRY

In India we see that there is no proper legislation as such that deals with the issues relating to sports as an industry and as a result, we see that various laws are used to govern the same. Nowadays because of commercialization and the leading cases of exploitation of sporting events and also athletes have paved ways for copyright to become extremely important and valued for protection of collective or individual rights . Copyright in the domain of sports is used for the protection of different aspects of a sport or a sporting event which involves use of any catchphrases, logos, images and even promotions. In India the Copyright Act of 1957 gives protection to all of the above-mentioned facets. It also gravely safeguards the broadcasting and performing rights and is considered to be fairly liberal by allowing both the author as well as the society at large to explore their creativity.

It is worth mentioning that all the sports organizations rely heavily on the revenues inculcated from media and broadcasting rights to build the infrastructure of sporting clubs and stadiums, promote and stage new sporting events and also to engage in the process of community outreach so that the rising interest for the particular sports is maintained. We can also see that major sporting events are being streamed and aired worldwide which allows millions of spectators to be a part of the thrill and excitement of the event through the media outreach. copyright along with the neighboring rights provides protection against unauthorized and unlicensed broadcasting and provide support to sports and media relationships as they pay a hefty amount of money to gain exclusive rights to showcase the athletic events that are streamed live.

Now since copyright in India does not mandate for any registration of the work by the author it becomes very easy and convenient to seek protection for the same and even sought remedies and damages. in any case of infringement of the copyrighted work the act provides for civil remedies under Section 55 where Permanent, Interlocutory, Temporary, Mareva Injunctions and Anton Pillar order helps to sought profits or damages and even litigation costs. not only does the remedies stop at a civil remedial step but Section 63 if the Act provides for criminal remedies in the form of imprisonment on account of a cognizable offense which is punishable with a fine amount.

IMPORTANCE OF BROADCASTING AND PERFORMANCE RIGHTS IN THE SPORTS INDUSTRY

With the up roaring development and admiration of the sports enterprise in India the attached issues of broadcasting and sponsorship have also shot to great heights. Why is broadcasting such an important aspect of the sports domain has a very simple answer to it. with the word dominance that sports industry has it becomes difficult to cater all the fans and audience in one stadium and it also decreases the horizons of the sports itself making it just an intra territorial affair but with the art of broadcasting all such territorial boundaries are demolished, and every individual can have the access to the sports event through the comfort of television and media. owing to this global achievability of content created through the means of broadcasting we can see that the Indian Copyright Act recognizes a separate set of rights for the same. it ensures that no one gets the authority to stream or air any copyright protected and licensed professional sporting event without prior permission from the sporting league, association or an organization .

In this case the broadcasting companies enjoy the exclusive rights to broadcast an event and once they get the rights for the same they act as owners of the broadcast and can rebroadcast a sporting event according to their own wishes and demands . Now if any person or group of persons tries to broadcast or publish any such copyrighted work which has already been broadcasted or published or tries to sell or heir to the public, or even tries to offer such sale or hire is considered to have infringed the broadcasting rights of the owner .

This is considered to be an offense under the Section 51 of The Indian Copyright Act , 1957. This happens because due to the day-to-day advancement of technological advancements in the sporting event in relation to it being televised or streamed worldwide. however it is noteworthy that the copyright cat in Indian subcontinent did not consider safeguarding the board casting and performance aspect of an event first but later on in the year 1994 it was seen that Section 37 and 38 were repelled and a new section was added entirely dedicated to providing broadcasting and reproduction rights which also included the aspects of performance.

Here after the replacement it can be seen that Section 3 of the Sports Broadcasting Signals (Mandatory Sharing With Prasar Bharti) Act 2007  makes it important for all content rights owners to share the broadcast signals of events of national importance in sports domain without including any advertisement with the Prasar Bharti so that it can be re- transmitted into their own DTH and Terrestrial networks .

The law was passed so that games and sports that hold national importance can be accessible easily by the majority population of India however it is more than discriminatory and places private enterprise at a disadvantageous position who spend billions all together to gain exclusive rights to a match , sporting event , games etc.

With the changing times and a restricted life that each individual enjoys at a social platform or cyber space, these new emerging social media platforms have entirely transfigured the way sports enthusiasts and fans receive these sports contents . Owners of these exclusive broadcasting rights and their partner business are facing multiple challenges due to the ever-growing and evolving times of social media GIFs, Background vines , live streaming and piracy pose grave threats and are a reason for monetary loss suffered by the mentioned right owners.

TEST OF PRACTICALITY OF COPYRIGHT IN THE SPORTS INDUSTRY

Now owing to the above explanation and discussion of the broadcasting rights lets deal with a very practical aspect of broadcasting of such matches and how copyright comes to its rescue . The issue surface when an individual who is watching any sports match or is witnessing any sports event etc via a valid ticket starts photographing and making videos of the event and then use them to pristine money out of it by either selling them or uploading it on the internet or even by going live on their own website .

Now, here the question of whether or not the act committed by this individual is an infringement of broadcasting rights of the authorized owners or not  is highlighted . if we stick to the definition of the word broadcast which is given in Section 2(dd) of the Indian Copyright Act 1957 simply means communication established to the public by :

1. Any means of wireless dispersion, which can be in any one or even more forms of signs, visual images , sounds or
2. Use of any wire, and also includes a rebroadcasting.

Adhering to the above mentioned definition of broadcasting we can simplify the term communication to the public which clearly means making any work available for being seen or head or also enjoyed by public at large directly or indirectly by any means of display or diffusion other than issuing copies of these works regardless of the fact that any public actually witnesses it or not . and so , it can be conclusively said that uploading any such videos etc by an individual or group of individuals who is sitting and witnessing the sports event is infringing the broadcasting rights of the actual owners . This results in the exploration of a gray area as to how to stop these individuals from photographing and also recording in the location of the event .

Secondly it also opens doors to a speculation as to who actually will have copyright over the photographs and the videos taken? Owing to the definition of copyright it becomes very clear that the person who has taken the pictures and the videos possess  the rights over them but the question of the act being justifiable or not still lingers which can be understood by the fact that the price paid by the individual or the group etc to purchase the tickets is explicitly for watching the match and not to record , photograph or use the material for their own commercial interest .

Moving on we can see that if a person is involved in the act of downloading the videos that have been uploaded by the original broadcasting owners on their own website and the involved person or group of person are seen sharing the file or uploading it on his or their own website then will it account to infringement also keeping in mind that some websites are paid or get paid on the basis of the number of hits or clicks per day . lastly the question about whether the streaming of a live match in pubs, bars or even restaurants on the big screen without the adequate permission for disseminating the live broadcast will in any way amount to an infringement or not . the key to understanding this set of question is that the subscription obtained by these bars , pubs etc are for their own personal use and not for a commercial consumption , and so by showing the match that is streaming live and inviting the fans of that particular sports to their commercial place of business generates a commercial interest but sadly enough the current copyright laws in India is not catering to such questions and thus leading to a dead end .

Another major set back in the Indian copyright laws dealing with the sports industry is that the Broadcasters right don’t protect copyright in the work . Rights of a broadcaster as per the act are a set of exclusive rules that are provided to the broadcaster which essentially include neighboring rights and this does not protect the copyright in the work but the broadcast itself .

In the case of Espn Star Sports v. Global Broadcast News Ltd .and Ors  it was held that Section 13 and 14 of the Indian Copyright Act makes it very clear that copyright will exist only in work and “work” here does not include the word broadcast. due to this there only exists a broadcaster right in the telecast of a live event or events that are communicated to the public as per under Section 37 of the Act and is entirely distinct and separated from copyright all together. consequently, the Broadcast Reproduction Right which stands different from that of copyright is with the Broadcasting Organization which causes the broadcast to be effectively communicated to the public under the name and logo as per the definition of the term Broadcast under section 2(dd) and the term communication to public under the given Section 2 (ff) of the Act.

If we do a comparison, we can see that the Broadcasters of any sports events in the UK enjoy copyright protection in transmitted programmes as broadcast works. any fan making videos, editing, uploading or for the record even found distributing clips related to the live sporting event may be infringing the Broadcasters copyright however we can clearly see that’s not the case here in India.

The Indian copyright law is still not equipped with or rather has no scope for live events that are aired throughout India as it does not fall under Section 13. In order to adjudicate this major issue in India Section 13(b) of the Act needs to be interpreted. The infringement of rights in association with sports events is yet a subject matter pending for settlement in the precinct of Indian Judiciary as the matter has been raided but not satisfactorily addressed in the Indian Courts.

The loophole lies in the definition of cinematography films as per Section 2(f) of the Act which refers to any work that has been recorded in a tapes , video cassettes or any fixed medium such as compact discs but a Live Broadcast of any sporting event cannot be recorded until it has been saved in one of the fixed means as discussed  above cause they are aired when they are happening at present .

CONCLUSION

Adhering to the above statistics and analysis it can be said that copyright in the broadcasting of these sports events and the due right of performance in the sports industry holds very high significance when the question of protection of rights is concerned. These live sports events involve a hefty amount of finances and hold a very important economic value and thus it shouldn’t be blatantly ignored in a nation as big as India. the Indian Courts till date are trying to Provide recognition to the Copyright on Live streaming events but still hasn’t been able to back up sufficient matter for the same .it would be critically wrong to say that the Indian Copyright laws has failed to provide justice at all to the sports industry but there certainly is a long way to go which must be reached as soon as possible so that people can keenly invest in these live streams without missing out on their rights