Law still developing on broadcast of sports events

By Kajigailiu Gaiduwan Kamei, Lall Lahiri & Salhotra
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With India participating more in global sport, there has been a significant growth in its sports industry. This has resulted in the evolution of the legal framework in relation to sports events.

Kajigailiu Gaiduwan Kamei Associate Lall Lahiri & Salhotra
Kajigailiu Gaiduwan Kamei
Associate
Lall Lahiri & Salhotra

Organizers of sports events aim to extract maximum value by exploiting the marketing potential that such events offer. Intellectual property rights are typically associated with the manufacturing industry, but organizers of sports activities also tap into this lucrative market.

Organizers begin by creating an official name, a distinctive logo or phrase for the event and then promoting them heavily. As a result they become identifiable and associated with the event and acquire a strong trademark value. For example, the Indian Premier League (IPL) brand has been valued at US$4.13 billion in 2010 and US$3.67 billion in 2011, according to the brand valuation consultancy Brand Finance.

Lucrative rights

There are numerous revenue streams for the rights holders of sports events: sponsorship fees, gate collection, licensing and franchising, broadcasting, merchandising, etc. Perhaps the most lucrative is the exclusive right of recording and broadcasting the event over television, radio and the internet, the impact of which is growing by the day.

For example, Times Internet which, along with YouTube, was the official partner of the Indian Premier League-4, pointed out that the online streaming received was more than 72 million page views at the time of IPL-4 as compared to 55 million the previous year. Broadcast rights are a valuable asset in sports.

The sale of exclusive broadcast rights commands staggering fees from the rights holders and the interface of intellectual property and sports leads to a plethora of issues involving trademarks, broadcasting rights, sponsorship, privacy, publicity, merchandising and licensing, comparative advertising, ambush marketing, etc. The following are a few legal principles with regard to broadcasting rights in respect of sports events.

Airwaves are public property

In Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal, the Supreme Court delivered a landmark judgment holding that airwaves are “public property” and that their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights.

Mandatory sharing

The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, makes it mandatory for private channels to share sports broadcasting signals with the government owned Prasar Bharti that runs the free-to-air channel, Doordarshan (DD). As a result sporting events of national and international importance appear on DD for which there is a mandatory revenue sharing of 75:25 for television coverage and 50:50 for radio coverage.

Sporting events of national importance are to be determined and notified by the Ministry of Information and Broadcasting in consultation with the Ministry of Youth Affairs and Sports, Prasar Bharati and the concerned sports channels and sports rights management companies.

It has been recently reported that Prasar Bharti has initiated a move to increase its share in the revenue earned from telecast of sports events and has also recommended the review of the list of sports to be shared. It also wants the appointment of Prasar Bharti as the sole marketing agency for advertising spots on its channel DD instead of the current process of bidding against private broadcasters. This is likely to spark off protests from the broadcasters.

Fair use

The unauthorized use of a copyrighted work amounts to a copyright infringement, however there is a degree of freedom allowed for “fair use” in the context of news reporting and journalism. Delhi High Court analysed the question of whether the News Access Rules imposed by Prasar Bharti are fair and proper in Prasar Bharati v Sahara TV Network Pvt Ltd. The court sanctioned the legitimacy of the rules holding that news channels could air content for a maximum of seven minutes.

Recently, official broadcasters of cricket series and events have entered into agreements with the News Broadcasters Association to specify limitations and guidelines that news broadcasters have to comply with in respect of their use of footage of cricket matches. These agreements are yet to be tested in an Indian court.

The law with respect to broadcasting rights of sporting events is still developing. However, it is clear from precedents that broadcasters must comply with “fair use” standards.

Ultimately, the law will strike the best balance between the commercial model of sports events and the public interest. As the economy grows the legal framework in so far as broadcasting of sporting events is bound to evolve further.

Kajigailiu Gaiduwan Kamei is a managing associate at Lall Lahiri & Salhotra, which is an IP boutique based in Gurgaon.

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