Intellectual Property Rights in Sports

With data now one of the most valuable commercial assets in sport, critically evaluate the use of copyright, database rights and trade secrets as means of legal protection. Introduction

Sports being a commercial activity and not just a recreational activity, revenue generation is an important aspect and a significant portion of this revenue comes from activities like branding, merchandising and other related activities undertaken by sports clubs. These activities need protection from the intellectual property law. Sports clubs like Manchester United, English Premier League, and New York Yankees earn significant amounts of revenue through their brand capitalization, but much of that brand capitalization is done through creation of intellectual property, and this creates a need for intellectual property rights and their protection. Indeed, the playing and watching of sports involves not just the activity of sport but also the business activities related to it and the related intellectual property assets can be embodied in logos, shows, and equipment. This essay discusses and evaluates the use of copyright, database rights and trade secrets as means of legal protection in the context of sports..

Intellectual property and sports

It can be established at the outset that intellectual property law is related to different aspects of the sports business. The questions raised here are related to how far the intellectual property law is relevant in providing protection to such intellectual property rights. There are different ways in which modern sport events can be linked to the protections offered by intellectual property law. Sports organisers can claim exclusive rights to events that take place in dedicated venues through what are called as conditional access agreements or house right. Recording and broadcast of sporting events may give rise to copyright rights. There are also the ways in which different stakeholders may be involved in the value chain that does the organisation of sport events. These different stakeholders include clubs, leagues, federations, TV broadcasters, sponsors, and sport facilities’ owners. Therefore, there are a number of elements and stakeholders that are involved in the sporting events which may lead to a complexity of intellectual property rights claims, all of which may not at this time be addressed in the law. For example, sports moves are not protected by intellectual property law in the UK as will be discussed later in this essay.

One of the starting questions involving intellectual property rights related to sporting events is whether the event in itself can have protection as intellectual property; this question was answered by the European Court of Justice in Football Association Premier League Ltd and others v QC Leisure, where the court held that sports events like football games do not qualify as protected subject matter under copyright law of the EU. Under the copyright law, the subject-matter would have to be original in the sense of the author’s own intellectual creation and as football matches leave no room for creative expressive freedom, they cannot be considered to be subject matter for the purpose of the intellectual property law. Although, the sporting event in itself may not be a subject matter for intellectual property rights, there are other aspects related to the event that can give rise to intellectual property rights. In

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1. Sharada Kalamadi, ‘Intellectual property and the business of sports management’ (2012) 17 Journal of Intellectual Property Rights 437.
2. Ibid.
3. F. Scott Kieff, Robert G. Kramer and Robert M. Kunstadt, ‘It's your turn, but it's my move: Intellectual property protection for sports moves’ (2008) 25 Santa Clara Computer & High Tech. LJ 765.
4. Thomas Margoni, ‘The protection of sports events in the EU: Property, intellectual property, unfair competition and special forms of protection’ (2016) 47 (4) IIC-International Review of Intellectual Property and Competition Law 386.
5. Ibid.
6. Ibid, p. 389.
7. Joined Cases C 403/08 and 429/08 Football Association Premier League Ltd and others v QC Leisure and others and Karen Murphy v Media Protection Services Ltd (2011) ECR-I-908

many cases, such aspects may be related to the broadcast of the sporting events and the showing of the intellectual property of the related stakeholders in such broadcast. In the modern context of sporting business, broadcasting is one of the areas where intellectual property involved in sporting events may be involved. A legal dispute between the Football Association Premier League (FAPL) and a Swansea publican brings to fore the kinds of intellectual property related issues that may arise in the context of sports. In this case, FAPL brought a suit for copyright infringement against broadcasters and UK publicans for use of decoder cards. The publicans were broadcasting FAPL matches in their pubs, which meant that they were communicating FAPL’s copyright works to the public for the purposes of section 20 of the Copyright, Designs and Patents Act 1998. These copyright works involved FAPL’s logos and artistic works. The defendant argued that the FAPL was involved in unlawful agreements to prevent broadcast the matches but the argument was not accepted by the court and the injunction against broadcast involving intellectual property of FAPL was issued. In a previous case, the High Court had held that using decoder cards imported from other Member States to show live Premier League football matches in UK pubs can be a copyright infringement of the works contained in those broadcasts. The implication of this decision was that pubs will not be held to have infringed copyright if they can display the games without the protected elements.

Broadcast of sporting events may also be protected under the UK law, the Copyright Act 1988 protects recording on any medium from which a moving image may be produced by any means. Because the copyright does not explicitly require films to be original in order to be protected by copyright, recordings of sports events can be protected under the law. Protection as a dramatic work can also be claimed where a ‘film’ is a work of action, as a sporting event can be. The problem may arise where publicans broadcast the events as was the case in Premier League v QC Leisure. The UK Copyright Act, Section allows showing or playing of a broadcast in public, to an unpaying audience. In Premier League v QC Leisure, publicans were communicating the live sporting events to the public via screens and speakers of televisions placed in the pubs but as they were not charging the public an admission fee for the viewing of such broadcasts, the broadcasts were exempted from the operation of the copyright infringement law. At the same time, Premier League v QC Leisure judgment made it clear that there is some content that is not covered by the exception, which is showing of logos or anthem and that these would be infringement of copyright. It may be argued that even though the pubs are not charging for the admission fee where live broadcasts are being made, they may still be profiting from the broadcasts because customers will come in to watch the matches and drink.

The retransmission of the sporting events broadcast can however present a different kind of issue in the context of the intellectual property rights. In the EU, the Information Society Directive was enacted to implement the WIPO Copyright Treaty. The provisions of the Directive have been adopted in the UK through the Copyright and Related Rights Regulations 2003. The regulations apply to the situation involved in retransmission of sports events broadcasts. Accordingly, unauthorised use of a television broadcast on another TV channel or Internet can be an infringement of the neighbouring right or copyright in the broadcast. The ECJ has held that as per Article 3(1) of the Infosoc Directive, unauthorised retransmission of television broadcasts over the internet are not permitted. Therefore, if the

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8. Football Association Premier League Ltd Ltd v Luxton [2014] EWHC 253 (Ch).
9. FA Premier League Ltd v QC Leisure [2008] EWHC 1411 (Ch).
10. The Copyright, Designs and Patent Act 1988, section 5B(1)
11. Norowzian v. Arks (No. 2) [2000] EMLR 67.
12. Joined Cases C 403/08 and 429/08 Football Association Premier League Ltd and others v QC Leisure and others and Karen Murphy v Media Protection Services Ltd (2011) ECR-I-9083.
13. Case C-607/11, ITV Broadcasting Ltd v TVCatchup Ltd.

retransmission of the broadcast is done by an organisation other than the original broadcaster, this can be an infringement of the original transmitter’s rights. Patenting of sports apparatus is one of the areas in which intellectual property law may relate to the sports. An important case is that of Windsurfing International v Tabur Marine, which involved the plaintiff who was the manufacturer of windsurfer and patented arc-shape sailboard. The arc-shaped model attained higher speed and stability due to the innovative steps involved in its making. The plaintiff sued the defendant for patent infringement. The defendant challenged the validity of the patent on the ground that a boy has already used the similar method to hold the sail taut and provided a handhold for the rider 20 years before the plaintiff did and the plaintiff’s sailboard was an obvious improvement on the boy's invention. The court held that the improvement carried out by the plaintiff was not sufficient to gain the protection of a patent, but importantly the inference can be drawn that sporting apparatus can be patentable under the patent law.

One of the complex areas that may be related to intellectual property law is sports moves or the specific ways in which an individual may play a sport and there has been a question raised as to whether such sports moves can be copyrighted or patented. This may be related to trade secrets also. An argument is made that because some sports movements can be more than a simple move and involve complex body postures that may be aesthetic as well as effective, and that such moves should receive protection of the copyright law in the same way as choreography moves do under certain conditions. This argument is especially relevant to sports like free-style gymnastics and synchronized swimming that see coaches devising complex sets of moves that require accurate movements by the sportspersons. In the United States, an example of copyrighting of a sports move is seen in the case of a Texan coach who registered the I-Bone football formation with the Copyright Office. Support for recognising the patentability of certain sports moves can also be found in other academic work; for instance, Kieff et al, argue that positive law would have well within its scope to protect IP rights for sports moves that enable a player to do better than their opponents. Three forms of intellectual property protection may be relevant to sports moves: patent protection for moves that impart a useful result; copyright protection for creative moves; and trademark or service mark protection for moves that come to indicate a unique source of goods or services.

The problem with intellectual property rights involved in sports moves is that while it may make sense from business point of view, it may not be able to be fit in the law as it is now. In the UK, the Patents Act 1977 is the relevant legislation under which the patent for sports move has to be applied for. The Patents Act 1977 sets out the steps required for determine the patentability of inventive intellectual property. Sections 1 to 4 law down the requirements for the patentability are that it should relate to something that is new, consists of an inventive step, is capable of industrial application, and is not excluded. While patenting sports equipment is not problematic because courts can assess the patentability on the basis of the requirements of the Patents Act 1977, the same cannot be said of sports moves. For example, applying the Windsurfer judgment discussed before, one of the questions that

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14. Ibid.
15. Windsurfing International v Tabur Marine [1985] RPC 59.
16. Ibid.
17. Carl A. Kukkonen III, ‘Be a Good Sport and Refrain from using my Patented Putt: Intellectual Property Protection for Sports related Movements’ (1998) 80 J. Pat. & Trademark Off. Soc'y 808.
18. Ibid.
19. Ibid, p. 810
20. Ibid.
21. Kieff et al, ‘It's your turn, but it's my move: Intellectual property protection for sports moves’, supra n. 3.
22. Ibid, p. 765.
23. R. M. Kunstadt et al., Are Sports Moves Next in IP Law?, Nat’l L.J., May 20, 1996
24. Windsurfing International v Tabur Marine [1985] RPC 59.

can be raised at the time of determining patentability of a sports move would be whether the step would have been obvious to another sportsperson; this is not easily answered in sports because of the nature of sports where it would be likely that some other sportsperson could have also come up with the same move. Indeed, it is also challenging to assess whether a sports move has not already been invented by someone. Moreover, specifically in the UK law setting where inventions can be patented if they can be made or used in any kind of industry (Patent Act 1977, Section 4 (1)), it would be difficult to apply this to sports moves because sport moves cannot be made in an industrial setting. Finally, the problem with granting intellectual property in for team sports related moves is that such moves can be usually the result of team effort and not one person may be said to be the originator of the move.

With regard to data, sports event can be considered to be subject to an obligation of confidentiality for the event organiser even when that information is being almost immediately made public. Data related to sports events which has the necessary quality of confidence, is imparted in circumstances importing an obligation of confidence, and is unauthorised use by the confidant can be subject to confidentiality rights. One of the problems with the approach to confidentiality in live sports events is that a sporting event held in public and broadcast live on television may not constitute confidential information as it is publicly broadcast.



Conclusion

To conclude, intellectual property rights are relevant to different aspects of sports, particularly the business of sports. Modern sports involve a number of dimensions that can involve intellectual property rights of different stakeholders. The problem however is that there are some areas, like sports moves that are as yet in the grey area as far as the law is concerned.

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Bibliography

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25. J. A. Smith, ‘Its Your Move-No It’s Not! The Application of Patent Law to Sports Moves’ (1999) 70 U. Colo. L. Rev. 1051.
26. The Racing Partnership Ltd & Ors v Done Brothers (Cash Betting) Ltd & Ors [2019] EWHC 1156.
27. Coco v AN Clark (Engineers) Ltd [1969] RPC 41.

Kalamadi S, ‘Intellectual property and the business of sports management’ (2012) 17 Journal of Intellectual Property Rights 437.

Kieff FS, Kramer RG and Kunstadt RM, ‘It's your turn, but it's my move: Intellectual property protection for sports moves’ (2008) 25 Santa Clara Computer & High Tech. LJ 765.

Kukkonen III CA, ‘Be a Good Sport and Refrain from using my Patented Putt: Intellectual Property Protection for Sports related Movements’ (1998) 80 J. Pat. & Trademark Off. Soc'y 808

Kunstadt RM et al., Are Sports Moves Next in IP Law?, Nat’l L.J., May 20, 1996.

Margoni T, ‘The protection of sports events in the EU: Property, intellectual property, unfair competition and special forms of protection’ (2016) 47 (4) IIC-International Review of Intellectual Property and Competition Law 386.

Smith KA, ‘Its Your Move-No It’s Not! The Application of Patent Law to Sports Moves’ (1999) 70 U. Colo. L. Rev. 1051.