When the umpire gave signal for Floyd Mayweather and Manny Pacquiao to start what was dubbed the “Fight of the Century” on 2 May 2015, viewers at home sat down to watch the match – the biggest pay-per-view event in history – having shelled out US$100 for the privilege. Also watching were thousands of people seeing the match unfold for free on the live streaming application Periscope.
The rise of apps such as Meerkat, Twitter-owned Periscope and (the now defunct) Vine means that platforms, such as Twitter, have moved from facilitating reactive coverage to events, to live streaming platforms enabling any user to live stream from anywhere at any time. Amongst the hardest hit by this development have been sport rights holders who rely on TV companies to buy broadcast rights and the TV companies who pay millions (in some cases billions) for the rights to broadcast the events.
We are increasingly advising sports organisations on the challenges presented by social media platforms, such as Snap’s new Snapchat Live Stories app, regarding live streaming. These challenges are now very real as use of these applications becomes more prolific. Rights owners ignore or refuse to adapt their enforcement strategies at their own peril.
Current copyright protection for rights holders
Section 1(1) of the Copyright, Designs and Patents Act 1988 (CDPA) states that copyright subsists in:
- “original literary, dramatic, musical or artistic works” (s1(1)(a)); and
- “sound recordings, films or broadcasts” (s1(1)(c)).
To illustrate the legal challenges this difference in terminology can cause in preventing live streaming outside a stadium on the one hand and inside a stadium on the other, it is important to consider the difference between “content” and “signal”. Copying a dramatic work such as a play, involves copying the dramatic work itself. Taping a broadcast involves copying the signal. S1(1)(a) CDPA protects the content of a work, regardless of the signal/means by which it is transmitted. S 1(1)(c) protects the signal itself not the content it carries, which is why there is no requirement for it to be original.
Take the Mayweather-Pacquiao scenario. Anyone who pointed their phones at the TV and streamed the fight (or snippets of it) through Periscope, infringed the copyright in the broadcast (i.e. the signal). The possibility of a broadcast being classified as an “intellectual creation” and therefore a dramatic work under the CDPA “by virtue of the selection of camera angles, close ups, slow motion and the like “ was raised in ECB and Sky v Fanatix  EWHC 575 (Ch), but this argument was never pursued in the case itself.
During the Mayweather-Pacquiao fight, Periscope was inundated with takedown notices. Had the issue been pursued in the UK under the CDPA, ignoring the takedown requests or turning a blind eye to the infringements taking place on their platform, would have resulted in a breach of the CDPA. (The terms and conditions of both Periscope and Meerkat prohibit users from infringing third party copyright, and yet still the takedown notices were not heeded.)
As soon as live streamers step out of the living room and into a stadium, rights owners are left with no copyright protection as sporting events themselves do not qualify as dramatic works under s1(1)(a) CDPA. This was confirmed by the CJEU decision in Premier League v Murphy (C-403/08). The CJEU held that as football matches are subject to the rules of the game, the “content” of the game leaves no creative freedom whatsoever as required for copyright purposes. This lack of intrinsic copyright protection under English law, means there is nothing to prevent users pointing smartphones, drones (which can live stream without being inside stadium grounds), or any other technology with a line of sight of the action and live streaming an entire match. Rights owners are left unable to issue takedown notices to streaming applications demanding the content be removed as there is no copyright being infringed.
Legal protection by alternative means
A partial solution has been, as happened at the US Open, to ban the use of Meerkat and Periscope inside tournament grounds as part of the T&Cs of entry. Although the threat of eviction from the tournament and loss of ticket privileges may be a deterrent for some, such T&Cs are difficult to enforce in a stadium containing thousands of supporters. The NHL went some way towards addressing this by prohibiting “credential media” from using the applications before and during the match. The league conceded that enforcing this against fans inside the stadium would be impossible. The PGA Tour evicted a reporter from using Periscope to film golfers practicing. This should signal to both reporters and fans that organisers take their rights seriously, and will serve as a deterrent. Other sports organisations are taking a “wait and see” approach before taking any final decisions on how to enforce against fans.
Other than the practical difficulties of enforcing a filming ban inside stadia, the complex contractual arrangements between the sport rights holder and broadcasting companies, that set out ownership, filming, recording and broadcasting rights, mean that reaching agreement between all stakeholders as to what streaming is and isn’t to be allowed and who will be granted the rights to broadcast them will take time to work out, and in many cases, will have to be done on a case by case basis.
Rights owners can no longer ignore the live streaming phenomenon and must engage with fans. Failing to do so could quickly diminish the value of the broadcasters’ investments in many sports. But rights owners and broadcasters must also recognise the difficulties inherent in restricting use of devices and apps at events and how counter to current culture even trying to restrict these activities could be. A possible solution might be to create designated fan zones within stadia where live streaming is allowed (although it remains difficult to see how organisers will be able to control use of devices and applications elsewhere at a venue), or leagues reaching out directly to streaming apps to manage what can be uploaded during games.
Looking to the future: possible solutions
The Murphy case, hinted at the possibility of legislative change. The CJEU stated that sporting events “have a unique, and to that extent, original character which can transform them into subject matter that is worthy of protection” and confirmed that this could be done at national level by virtue of IP legislation. If and until English law is amended, or until the Commission itself proposes amendments to the Copyright Directive for intrinsic copyright protection across the EU, it will be up to rights holders and broadcasters themselves to put in place other measures to prevent live streaming inside stadia. Indeed, even if new harmonising legislation were to be introduced in the EU, if the UK does opt for the hardest of Brexit options, it is unlikely that the UK would still be a member of the EU by the time it is enacted.
An IP senior associate in Bird & Bird’s Media, Entertainment and Sports team, Rebecca O’Kelly-Gillard, observes:
“If pre-event arrangements prove to be ineffective, rights owners will need to consider their options regarding monitoring the worst infringements and being savvy as to what services it targets to put an end to infringing activity: look at the penumbra of players to ensure you are maximising the effect of whichever infringement route you take without alienating fans. Rights owners also need to be careful to look at the nuances of rights applicable to each of the new platforms coming on the market – a “one size fits all” approach will no longer be suitable.”
Although the legal waters may be slightly muddied, what is clear is that live streaming technology will not go away and will only continue to evolve. Rights holders are currently facing their own “Match of the Century” against live streaming fans. Time will tell who emerges the winner.