Are Nike, IOC and European football leagues scoring new IPR at the WTO?

At the request of the European Union, Jamaica, Mexico and the United States of America, the topic of "Intellectual Property and Sports" was placed for discussion at the World Trade Organization's (WTO) October 2013 session of the Council for TRIPS (TRIPS Council).

Intellectual Property and Sports is the fourth in a series of agenda items on innovation the US has advanced since November 2012 including: 1) Intellectual Property and Innovation-Brazil and the US-November 2012, 2) Intellectual Property and Innovation: Small and Medium-Sized Enterprises-Chile, Chinese Taipei, the Republic of Korea and the US-March 2013 and 3) Intellectual Property and cost-effective innovation-Canada, Chile, the EU, Rep. Korea, Switzerland, Chinese Taipei and the US-June 2013.

In addition to the formal discussions of Intellectual Property and Sports at the TRIPS Council, the EU, Jamaica and the US sponsored a side-event on the margins of the TRIPS Council on 11 October 2013 titled "Intellectual Property and Sports: Score with IP!" to sensitize trade delegates to the concerns of Nike, the International Olympic Committee (IOC) and the European Professional Football Leagues (EPFL). At the heels of the TRIPS Council, the "Score with IP" event perhaps represented the first beachhead at the WTO for sports leagues to advocate for new global norms for the protection of broadcasting organizations and for the establishment of sui generis sports rights .

A WTO press release describing the formal TRIPS Council discussions on IP and sport said that the proponents of this agenda item,

cited their own experiences in how a wide range of technological innovations can develop in sport, how revenues can be raised and disseminated through ticket sales, sponsorship, broadcasting and merchandising, and how they have developed laws and administrative structures to serve this….Jamaica said it is active in working on intellectual property in sport because sport is a major source of income, with world stars such as Usain Bolt using sponsorship and his trade-marked name to prevent infringements. Intellectual property and sport “are vital pillars of the country’s national development agenda,” Jamaica said.

The EU delegation noted that 3.7% of its gross domestic product (GDP) came from sport, and that the share of people working in sports was "comparable to agriculture, forestry and fishing combined."

According to the WTO, Venezuela, China, India, Bolivia, Cuba, Ecuador and Nepal expressed "reservations about the wisdom of discussing the subject at all" noting that the protection of broadcasting organizations was a subject of negotiation at the World Intellectual Property Organization (WIPO) and cautioning against duplication. (Ibid).

With respect to broadcasting, Venezuela stated:

Al respecto, para mí país constituye un error equiparar los derechos de los organismos de radiodifusión que son personas jurídicas, al de los derechos de los creadores sobre las obras producto del intelecto, derecho que se encuentra reconocido en la Declaración Universal de los Derechos Humanos en su artículo 27, pues los organismos de radiodifusión sólo sirven de plataforma para la difusión de las obras producto del intelecto humano y no son poseedores de e ellos

Asimismo, consideramos que este Consejo debería avocarse a temas de mayor interés para la humanidad, tales como la seguridad alimentaria, cambio climático, salud, protección de los conocimientos tradicionales, entre otros.

Venezuela asserted that it would be a mistake for WTO members to conflate the rights of broadcasting organizations with legal personality with the individual rights of authors of creative works, a right recognized in Article 27 of the Universal Declaration of Human Rights because broadcasters only served as a platform for the dissemination of creative works. Venezuela urged the Council to dedicate its discussion to matters of public interest including food security, climate change, health and traditional knowledge.

After the conclusion of formal TRIPS Council discussions, the EU/Jamaica/US convened their side event on "Score with IP" (complete with complimentary sandwiches and soft drinks courtesy of the European Union) on 11 October 2013 in Room S2 of the WTO. Tomas Baerts, First Secretary of the Permanent Mission of the European Union to the World Trade Organization chaired the panel. In his introduction, Mr. Baerts mentioned that a challenge in his job as a trade delegate dealing with intellectual property questions was convincing his children that his job is "fun"; IP and Sports, he claimed, fit the bill.

For further insight into the EU perspective on sports rights, it should be pointed out that on 18 January 2011, the European Commission issued a tender for a study to analyze "sports organisers' rights and image rights in sport from the perspective of the EU legal framework." The terms of reference for the EU study cited an ECJ ruling from 4 October 2011 (Football Association Premier League and Others) which reached the following conclusions:

98. […] Sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright.

99. Accordingly, those events cannot be protected under copyright. It is, moreover, undisputed that European Union law does not protect them on any other basis in the field of intellectual property.

100. None the less, sporting events, as such, have a unique and, to that extent, original character which can transform them into subject-matter that is worthy of protection comparable to the protection of works, and that protection can be granted, where appropriate, by the various domestic legal orders.

101. In this regard, it is to be noted that, under the second subparagraph of Article 165(1) TFEU, the European Union is to contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.

102. Accordingly, it is permissible for a Member State to protect sporting events, where appropriate by virtue of protection of intellectual property, by putting in place specific national legislation, or by recognising, in compliance with European Union law, protection conferred upon those events by agreements concluded between the persons having the right to make the audiovisual content of the events available to the public and the persons who wish to broadcast that content to the public of their choice.

103. It should be added that the European Union legislature has envisaged exercise of that power by a Member State inasmuch as it refers, in recital 21 in the preamble to Directive 97/36, to events organised by an organiser who is legally entitled to sell the rights pertaining to that event.

The "Score with IP!" speakers included: Peter Dirk Siemsen (Dannermann Siemsen, Brazil), Ezéchiel Abatan (European Professional Football Leagues), Howard M Stupp (International Olympic Committee), Marianne Chappuis (International Copyright Committee), Barbara Delli Carpini (Nike), Clarence Nesbitt (Nike) and Esmond Reid, Deputy Permanent Representative of Jamaica). Don Fehr, Executive Director of the National Hockey Players Association, was a no-show.

The use of IP in sports to generate income and to serve as an instrument to protect against ambush marketing were overarching themes raised in the discussion. Siemsen, founder of the Brazilian Intellectual Property Association (ABPI), described as the world's leading expert on sports and IP, pitched investment in sports infrastructure in the run-up to the FIFA World Cup and the Olympics as a boon for Brazil. This opinion did not appear to be shared by the tens of thousands of protestors who took to the streets of Brazil in June 2013.

Howard M. Stupp, Director of Legal Affairs, IOC, described the important role that IP played for his organization. Between 2009 to 2012, Stupp noted that the IOC received $958 million USD from its worldwide sponsorship deals. This sponsorship revenue was eclipsed by the revenue generated by broadcasting which brought in $3.9 billion USD. Marianne Chappuis, IOC, reiterated her organization's vigorous use of trademark law to protect its intellectual property assets, most notably, the five interlocking rings.

Ezéchiel Abatan, EPFL, underscored the fact that for his organization, an association of football leagues from 23 European countries, protecting the"live dimension" of sporting events was key as sports leagues could not enjoy copyright for broadcasting sporting events. Abatan urged WIPO and the WTO to further engage in creating global norms for a broadcast treaty. Perhaps more surprising was the clarion call issued by EPFL to create norms for sui generis sports rights or "competition organizer rights" which already exist in France, Australia, New Zealand and Hungary.

During the discussions, KEI asked panelists to discuss IPR claims on sports statistics, reporting play-by-play and fantasy leagues. The European Professional Football Leagues provided a detailed response:

Some of our leagues, for example, the Premier League, provide these services (Premier League). They do see other fantasy football organizers as competitors but they view this as a commercial situation not a legal situation. There are instances where fantasy leagues and sports betting entities use our data. Let me provide you an example.

We have special committees that rule on dubious goals. Normally, the event organizer is the one that determines who scored the goal in a match. One issue we have with fantasy football and sports betting is they use data which are not the official data which poses a question with respect to integrity. For example, if the official goalscorer is not recognized by the event organizer, this creates issues of integrity. When it comes to data, the Premier League can launch complaints at the domestic and the EU level to get their database rights recognized.

A little-known WIPO secretariat presentation at a seminar on Intellectual Property and Sport in Jamaica in April 2011 perhaps provides more context for understanding the motivations of the EU, Jamaica, Mexico and the US requesting TRIPS Council discussions on this topic and the presence of Nike, the IOC and the EPFL on the margins of the WTO. At Kingston seminar, WIPO noted that the "sums from TV rights and sponsors are much bigger than the sums generated from ticketing" noting that the Euro 2008 competition generated $2 billion USD and that Nimbus Communications paid $612 million USD to broadcast cricket over four years.

At the 2011 Jamaican seminar, the WIPO official pointed out that "[s]ports rights are generally NOT recognized by copyright legislation as a dramatic work in which a performance may subsist" and further noted that many countries did not possess "legislative recognition of sports rights". The WIPO expert furnished an example from a civil law country, France, which provided sports event organizers a defensive right of sui generis protection for hosting sporting events. The final bullet point in the WIPO slide on sports rights indicated that sports rights "are not afforded specific protection under
international treaties."

One wonders if this repeated mantra of "no sports rights" was meant to jog WIPO member states into establishing new globalized norms for sports rights?