Media and Intellectual Property Rights

It is possible to divide the relation "sport & media" in two large categories: the social aspects and the economic aspects. The social aspects of the relation refer to the influence that representation of sport through the media can have on society as well as on the world of sport itself. Problems that pertain to these aspects can include the issues of how media coverage of sport events can induce increased or decreased racism and violence in society; the issue of how media can influence the attitude of sport fans and of sportspeople (coaches, players, managers); the issue of the role of the media in strengthening or criticising the link between sport and nationalism.

The economic aspects of the relation, on the other hand, refer to the strong economic links that exist between sport and media. Attending sport events or watching them on TV (or any other audiovisual device) has become a significant economic activity generating considerable turnover each year. The selling of media rights is the main source of income for professional sport (notably football) in Europe. Merchandising is another important revenue generator for professional sport.

Although EU rules on the Internal Market and competition do not specifically target sport, they can have important consequences on the way sport events are broadcast or transmitted over networks. When it comes to the relation between sport and the media, the following Treaty articles are to be considered as relevant: articles on the freedom to provide services and the freedom of establishment (Articles 49 to 62 TFEU); articles on competition rules (Articles 101 and 102 TFEU); other relevant provisions concerning judicial cooperation in criminal matters (Articles 82 to 86 TFEU), sport (Article 165 TFEU), culture (Article 167 TFEU), and consumer protection (Article 169 TFEU). In addition, the relevant provisions of the Charter of Fundamental Rights of the EU must be taken into account, notably with regard to freedom of expression and information (Article 11 of the Charter) and the right to property (Article 17 of the Charter).

With regard to intellectual property rights (IPR) the European Court of Justice pronounced its ruling on the 'QC Leisure (also known as Murphy)' case in October 2011 (C-429/08). The Court expressed a number of considerations on the nature of sport events, saying that sport events such as football matches cannot be regarded as intellectual creations or works and that as a consequence they cannot be protected by copyright. However, the Court continued by pointing out that sport events have a unique and original character which can transform them into subject-matter that is worthy of protection comparable to the protection of works; it is therefore up to Member States to consider whether to grant such protection in the domestic legal order.

This latest pronouncement by the ECJ therefore raises the question whether sport events can be considered as subject to the same level of protection as works protected by copyright. Besides, it is a common practice for owners of rights to sport events (usually, the organiser of the competition) to ask the broadcaster holding the rights for such events to re-assign the neighbouring rights for those events back to the sport rights owners. As a consequence, it appears pertinent to examine the EU legal framework applicable to copyright and neighbouring rights since this framework is relevant for the protection of so-called 'sport organisers' rights'. The issue will be examined further in a study on sport organisers' rights launched by the Commission in 2012.

In May 2011, the Commission adopted a wide-ranging strategy on IPR which follows up on the proposed actions of the Digital Agenda and sets out a number of initiatives to implement those actions. In the field of copyright, the two initiatives that may have direct consequences on the way sports rights are licensed to media operators are the adoption of the Green Paper on online distribution of audiovisual works in the EU in 2011 and the proposal to launch a review of the Enforcement Directive.