Academic journal article The International Sports Law Journal

Competition Rules and Sports Broadcasting Rights in Europe

Academic journal article The International Sports Law Journal

Competition Rules and Sports Broadcasting Rights in Europe

Article excerpt

I. Sports TV broadcasting rights

Under Article 345 of the EC Treaty "The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership". Nor are there direct regulations pertaining to intellectual property, stipulating its type and/or the rules of possession of intellectual property rights.

One should start by defining the extent to which sports events can be considered as original audiovisual pieces of work, thus generating intellectual rights on behalf of their creator. In this case, there is usually a distinction between the creator's intellectual rights and the property rights resulting from their commercial exploitation.

In the case of sports events an obvious problem emerges though, i.e. how this "piece of work" can generate intellectual property rights protection given the competition involved, since the "piece of work" cannot be repeated as such, no matter how many times the specific sports event takes place. Contrary to the sports event itself, an audio-visual recording by modern technical means can imprint an event as a particular piece of work. In this case, however, there is no original audio-visual intellectual creation so that the rights of the person recording it are protected nor is that person to be considered its creator. This marketable audiovisual material is nothing but a simple recording of an event or perhaps of an intellectual creation (as would be taking a picture of a sculpture).

Defining the creator of a sports event examined as an audiovisual piece of work is the second problem one should deal with. The matter gets even more complicated when recording team sports events, since in this case there is more than one person involved in the sports spectacle.

Of course, from the old times, there is an unwritten rule, according to which, the organiser of a sports event holds the exclusive rights to its commercial exploitation. (1) This unwritten rule aside, these exclusive rights may also result from the fact that the organiser owns the event venue or has the right to commercially exploit this venue. The organiser may also establish broadcasting rights to a particular sports event on the basis of competition rules, claiming that live coverage by a third party may lead to poor attendance at his venue.

Therefore, if the sportsperson is not considered as the creator of a piece of work, it is obvious that he/she cannot transfer the creator's commercial rights to the organiser, simply because nemo dat quod non habet. The organiser may, however, acquire the sportsperson's rights to his/her image, which result from the sportsperson's rights on his personality. It is in this way that the organiser shall legally establish the right to commercially exploit a sports event broadcast. (2) On the 10TH of March 2009 the European Parliament adopted a resolution on the integrity of online gambling. (3) In this resolution the European Parliament called on the Commission to examine whether it would be possible to give competition organisers an intellectual property right (a type of portrait right) over the sports events they are organising (4).

II. The competition rules within the European Union

One of the main targets of the EEC was to create a system ensuring free competition within the Internal Market as one may see in Article 3(f) of the Treaty of Rome for the European Economic Community (EEC) in 1957. The basic regulations pertaining to competition were stipulated in Articles 81 to 86 of the Treaty of Rome and were included in the following European Treaties as well. (5) According to article 81 of the Treaty of European Union, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within Internal Market are not compatible with it and are thus strictly prohibited. …

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