TV Rights and Sport - Legal Aspects
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XI
TAB LE
OF
CONT ENT S
Summ ary of Contents
V
Fo re wo rd by Alexa nder SCHEUKK List
IX
of
Acronyms
XXVII
Introductory Remarks Ian BLACKSHAW
1
Sports Broadcasting in Community Law Richard PARRISH and Samuli MIE'JTINEN
9
1. 1.1 1.2 1.2 2. 2.1 2.2 2.3 2.4 2.5 3. 4. 5. 5.1 5.2 5.3. 5.4
Pricing Broadcasting Broadcasting Rights Impe dime nts to commer cialis ation Cons equen ces of broadc ast rights pricing Collective Selling and Exclusivity Exclusivi ty Collectiv e selli ng: The benefits The European Commission's approach to central selling Criticisms of the Commis sion's approach Collect ive selling in nationa l law The Purchase of Broadcasting Blocking Rules Access to Major Sporting Events an Television Television Argum ents in support of A rticle Arguments against Articl e 3a Judicial scrutiny of Article Right to shor t reporti ng
6.
Conclusions
Rights
3a 3a
9 10 11 12 12 13 14 16 20 21 22 24 26 27 28 31 32
Spo rt as Reflected Reflected in Euro pean Media Lnw Alexander SCHEUER and Peter STROTHMANN
35
1. 2. 2.3 2.2
Introduc tion Origins and Ownership EC Regulat ions ' National regulations
2.2.1 2.2.1.1 2.2.1.2 2.2.2 3-
Basis of rights to Own rights of organis ers Protection of sports organisers by virtue of Ownership and object object of' sp ort s rights' Condit ions for the Sale and Acquisition of Rights
3.1 3.1.1
Lim its to the right of transferral Regulat ions linked to the sale of
of
Rights
to
Sports Sports
Events
sports
events events
derived derived
or acquired rights
rights
35 35 35 37 37 37 38 39 40 41 41
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:
TAIJLH 01 CONTENTS 3.2.1 3.2.2 3.2.2 3.2.3 3.2.3 3.2.4. 3.2.5 3.3
Gener al moaning Distinction between markets Central marketing (rights infrastructur e) Procurement/central purcha se Vertical Vertical aspects How docs the acquisition of sports rights fit into the public service remit?
44 44 46 47 49 49
4. 4.1 4.1.1 4.1.1
Conditions for Broadcasting /Disseminatio n Television Conditio ns for satellite dissemina tion
51 5) 51
4.1.2 4.1.2.! 4.1.2.2 4.2 5.
Broadcasting important Events Conditions Assessment as part of a review of the 'Televisi on without Front iers' Directi ve New media and interactive services Conditi ons for Content Transmitted
53 53 54 55 55
5.1 5.1.) 5.1.2 5.1.3 5.1.4
Rules on adver tisin g Nature oftelcvisi on advertising Rides on quantit y Insertion of advertising durin g program mes .Sponsorship
55 55 56 57 58
5.1.5 5.1.5 5.1.6 5.2 5.2.1 5.2.1 5.2.2 5.2.2 6.
New forms of Article 3 ofl he 'Television without Front iers ' Directive Prohibitions and restrictions on advertisin g The 'Television without Frontier s' Directive Other secondary community legislation Final Remarks
advertising
Major Events and Reporting Rights Max SCHOCNTHAL 1. Introduction 2. Major Events and Media 2.1 Major event s' importance for society 2.2 Economi c significance ofrepo rting on major events 3. Legal Provisions on the Reporting of Major Events in Europe 3.1 Introduction 3.2 Broadcast of major events 3.2.1 3.2.1 Article 3a ofl he 'Television without Fronti ers' Directi ve 3.2.1.1 Conten t and origin itifrunt 3.2.1.2 The ruling of the Courl of First Instance 3.2.2 3.2.2 Article 9a ofl he Convention on Transfrontier Television 3.3 Right losh orl reporting 3.3.1 3.3.1 Council of Europe 3.3.1.1 3.3.1.1 Articl e 9 of the Convention on Transfrontier Television 3.3.1.2 • Proposal for for an Article 3b of the 'Television without Fronti ers' Directive 3.4 Current regulations at Member Stale level 3,4.1. Complet e transmission transmission 3.4.2 Right to short reporting 3.4.2.1 3.4.2.1 Germany 3.4.2.2 3.4.2.2 Austria 3.4.2.3 Interim assessmen t
59 61 62 62 62 63 65
65 65 65 66 67 67 69 69 69 71 7] 72 72 72 73 73 74 75 75 76 77
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XIII
TAI1I-H OF CONTENTS Snorts Broadcasting Rights in lite Digital Epoch: Balancing Between Traditional (TV) mid Alternativ e (3G) Subjects of the Mar ket from from the Perspective of the Europ ean Competition Law Ol es ANDRIV ANDRIVCHU CHUK K 1. I.) 1.2 1.3 1.4 2. 2.1 2.2 2.2.1 2.2.2
2.2.3 2.2.3 2.3 2.3.1 2. 12 2.3.3 2.4 2.5 3. 3.1 3.2 3.2.1 3.2.1.1 3.2.1.2 3.2.1.3 3.2.2 3.2.2.1 3.2.2.1 3.2.2.2 3.2.2.2 3.2.2.3 3.2.2.4 3.2.3 3.2.3.1 3.2.3.2 3.2.4 3.2.4.1 3.2.4.1 3.2.4.2 3.3
Introduction The essence of the Converg ence of platforms The pur pose of (he chapt er The stru ctur e of the chapter Sports Broadcastin g Rights: The 'Official Reality' Sports rights fin find di gi ti sat io n Preliminary findings of the European Commi ssion The aim(s) of the Sector Inquiry Presumably anti-compet itive practices
conflict
'8 1' or '82' ?
SI 81 82 83 83 84 84 85 85 86
87
Market definition Subslilutnbiliiy Bottleneck problems Joint selling The European Commi ssion' s final findings Conclusion Sports Broadcasti ng Rights: The 'Alternative Reality' Definition of the legal borders The main argumentation of TV companies Relevant market Converg ence of platforms Slight inter-platform difference is not a difference If the selling of sports rights without establishin g the special packages may be considered as bundling? Technological aspects Access to 3G platform via Internet TV companies as potential potential mobile communic ation's operators Diversity of alternative to TV platforms Sports rights do do not constitute essential driving force for for innovational investments by 3G operato rs Regulatory issues Avoiding of over-regulation by the Commissi on Sports content does not constitute news Essentiality The financial power of telecom operators Who should produce the signal for 3G operat ors? Conclu sions
Whet her t he Europea n Model of Essential Facilities Facilities Doctrine Might Be Applied to the Cont empo rar y Telecasting Telecasting of Premium Sports Conten t? Oles Ol es ANDIUYCHUK 1• 2.
Introduction Premium Sports Content as an Indispensable Broadcast Resource in the Digital Epoch
3.
The Phenomenon of Parallel Commentary and
Sports Broadcastin g
8!
Video-Shvammg in
88 88 89 90 90 9! 92 92 93 94 94 95 96 98 98 98 99 99 100 100 101 102 102 102 102 103
105 105
105 105
Premium
106
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XIV
TABLE TABLE OF CONTEN CONTENTS TS Is It Possible to Apply The Essential Facilities Doctrine to Parallel Commentary
5.
and
Parallel
Video-Streamingl
The separate downstream relevant market indispensabitity New product Rule of reason Conclusions
5.1
5.2 5.3 5.4 6.
TheLcgnl Njiture of Premium Spoils Events: 'IP or Not /P-That Is the Question'
110
II I II I 112 113 113
115
Oles ANDIUYCHUK
3.
Introduction Regulation of Copyright in the EC Primary EC law EC legislation and soft-law Hierarchical balance EC case law Sports Media Rights in the US and Other Common Law Jurisdictions
3 .1
Pittsburgh
1.
2.
2.1 2.2 2.3 2.4
3.2 3.3 3.4 3.5 3.6
NBA
7.1
7.2 7.3 7.4 7.5 7.6 7.7 8.
8.1 8.1
11 .
11.2 12.
v.
Honolulu
Ati Hoc Legislative Protection of Sports Media Rights Arguments in Favour of Non-Copyrightability of Sports Events Innovations and development of new media Non-Copyr ightabili ty of Fixture Lists Legal Protection and Remedies
7.
11.1
Motorola
Baltimore Orioles v. MLB PA
5,1 5,1 6.
10.
Our Dog Publishing
Chicago NLliC v. Sky Box Skysign
4.
9.1
v.
Athletic Association
INS v. AP
5.
9.2
Boston Racing
S&GPA v.
3.7 3.8 3.9
8.2 9.
v. Park
.
Contractual obligations Tort law Trademark rights Image and publicity rights Copyright Unfair competition and commercial misappropriation New product test Access Right Territorial restrictions Public viewing Off-Tube Rights Off-tube rights and traditional media Off-tube rights and new media Argumen ts in Favour of Copyri ghtibil ity of Sports Events Virtual and Targeted Advertising in Sports Content Virtual and targeted advertising in sports content in the EC Digital copying Conclusions
II S 119 123 124 125 125
Alhtelic
WCVB-TV Victoria
115 117
126
127 127 127
130 130 131 132 132 133
135 136
136 137 138 138 139 140 141
142
143 144 1 45
146 146 147
14S 153 154 155 156
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TAin.K 01-CONTENTS One World One Dre am? Spo rt s Blogging ii iitt the Beijing Olympic Gam es Evi WERKERS, Kiitrien LEEEVER and Peggy VAI.CKE I. 2. 3.
4. 4.1 4.1.1 4.1.2 4.1.2.1 4.1.2.2 4.1.2.3 4.1.2.4 4.2 4.2.1 4.2.2 4,2.3 4.2.4 5. 5.1 5.1.1 5.1.1.1 5.1.1.2 5.1.1.3 5.1.1.4 5.1.1.5 5.1.1.6. 5.2 5.2.] 5.2.2 5.3 6.
157 157
Introduction
157
The Olympic Games: Anywhere , Anytime Sports Journalism: For Everyone, by Everyone? The Olympic Games via the Internet; Risks and Opportunities
157 159 161 16 161 1 161 162 162
What is at stake? Exclusive broadcasting rights Exclusive intellectual property rights Sports events: copyrightable or not? A separate suigenciis copyright protection for for sports events Legal exceptions for jour nalis ts Enforcement of intellectual propert y righls in a digital context The IOC Guidelines General Internet Guidelines for all accredited persons IOC Blogging guidelines Political statements on blogs Copyright and intellectual property rights related issues Evaluation of the Guidelines Set Forward by the IOC The right to freedom of expression and information at stake? Introduction Scope in personae Scope in materiae Medium Restrictions The indirect horizontal effect and positive obli gations of the stat e The special status of jour nali sts as watchd ogs The Internet Guidelines and Blogging Guidelines put to the (est of Article 10.2
162 164 165 166 166 167 168 169 170 170 170 170 170 171 17 171 1 172 172 173
ECHR The repercussion s for all media players The repercussions for athletes
17 3
The convergence of media Conclusion
175 176
17 4
TV Righ s Related to Major Sports Event s: The Exampl e of the Olympi c Games Mar y STH.E, K ate JORDA JORDAN N aand nd T oby RYSTON-P RYSTON-PHAIT HAIT
179
1. 2. 3. 3.1 3.2 4. 4.1 4.2 4.3 5.
179 ISO 182
6.
Introduction The Melbourne Games Covering the Sydney 2000 Games Rights holders and SOBO Coverage of (lie (lie Games by non-righ ts holders Use of Games Footag e - Protecting Rights Holders Rights holders rind IOC copyright ownership Restrictions on non-rights holders and the News Access Rules Statutory prohibitions on non-rights holders New Media Appendix: Television News Access Rules Applicable to the Sydney 2000 Olympic Games
182 183 184 184 186 18 8
190 1 92
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XVI
"I Al tl .1 : OF CONT CONTEN ENTS TS
COUNTRY REPORTS THE NETHERLA NDS Marfan Oi.riiiis
19 197 7
1. 2.
Introduction Team Spor ts: Who 1 fas fas the Rights to ihe Spoil s Perform ance?
197 197
3. 4. 5. 5.1 5.2 6. 7. 8. 9. 10.
Position of Ihe Player Technology ami the Creation of Competition Restricting Restricting Competitors: Competition Competition Problems Relevant markel Collectivity and exclusivi ty Dutch Appro ach to the Competition Problem s Most Important Justification Grounds for a Violation of the Carte) Ban European Approach What What Can Still Be Said Against. This? Individual Sport Versus Team Sports
200 201 201 202 203 204 205 206 207 208
ARGENTINA Jose M. SAIJAT MARTINEZ
209
1. 2. 3.
209 210
4.
Law Applicable to Television Broadcast ing Rights The Iss ueof Right Right Holders Holders The Marketin g of Television Rights: Impact of Legislation on the Defence of Competition The Televising of Matches Played by the National Team
AUSTRALIA Deborah HEAI.EY
212 213 2)5
1. 2. 3. 4. 5. C.
Introduction Background to Negotiatio ns The Lands cape Media Owners hip and Control Anti-Siphoning Aust ralia' s Competition Law
7. 8.
Markets and Competition Collectiv e Negotiation of Broadcast Rights
of
Australian
Sport
215 215 218 220 220 222 223 225
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TABLE OF CONTENTS 3.3.1 3.3.2 3.3.3 4. 4.1 4.2
Principles In practice Overview Exploitation: Exploitation: Restrictions imposed by Competition Rules Introduction Competition law issues concerning broadcasting rights of sports events
4.3
The Jupiter League case
4.3.1 4.3-2 4.3.2.1 4.3.2.2 4.3.2. 3 4.3.3 4.4 4.5 5. 5.1 5.2 5.2.1 5.2.1,1 5.2.2 5.2.2.1 5.2.2.2 5.2.2.3 5.2.3 5.3 5.3.1 5.3.1.1 5.3.1.2 5.3.2
Relevant facts Decision by the Competit ion Council Applicable rules Relevant Relevant markets Major principles for for the selling of broadcas ting rights Court of Appeal Future Conclusion Exploitation : Restriction s Imposed by Media Regulatio ns Introduction The right of free gathering ofn ews and short reporti ng Legislation (Flemi sh Commu nity) Rig))! of free acces s to the event - right of recordi ng - right of short repor ting Case law Constitut ional Court (ArhUragehof/Caur it'Arbitrage) TVUmburgv. VRT World World Championships Cyclo-Cross Legislation (Frenc h communit y) Events of major importance for society Legislation Flemish Commu nity French Community List of events
BULGARIA Boris KOI.HV and Anton PETHOV 1. 2. 3. i
4. 4.1
Brief Overview of Bulgarian Sport Legislati on with Focus on the Broadc asting Rights Rights of Sport Organizations (Sport Federations and Sport Clubs) Ownership of Broadcasti ng Rights for for Sport Events under the Sport s Act Legal Framework of the Rights of Radio and Television Organi zation s over Their Programs Sale of Broadcast ing Rights for Football Match es Contract for distribution of lhe revenue s from the sale of broad casti ng right s between the BFU and the clubs
XVII 241 242 244 245 245 245 246
246 24S 248 249 249 253 254 255 255 255 256 256 257 259 259 260 261 262 263 263 263 264 266 269
269 270 273 276 277
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XVI II 6.2.1 6.2.2 6.3 6.4 7. 8.
-IAHL -IAHLE E OF CONTEN CONTENTS TS Centralised market ing of broadcasting rights and the issue of exclusivit y Arran gemen ts involving B N T , UFA, S.V.-R S.V.-RSA SA and RING Further Competition Law points Applicat ion of the CU Competit ion Law Blocked Hours for for Broadcasti ng Football Matches Protected Access of the Public to Sporting Events of Major impor tance for Society under Bulgarian Legislation
CYPRUS
285 285 287 289 291 296 299
Chrisiophoros CHRISTOEJIOROU 1. 2.
Introduction Overview
299 299
3. The Protagonists 3.1 Football in Cypru s 3.2 The media landscape 3.3 Pay television 3.4 Television services provi ders 4. Television Football Rights 5. Violation of Competitio n Law 6. Grant ing the Right of Exemption 7. The Opening of the Market 8. Conclus ions References
300 300 301 301 302 302 303 305 306 307 307
CZ EC H REP UB LIC
309
Pavel HAMERNIK 1. 2. 3. 3.1 3.2 3.2.1 3.3 4. 5.
Introduction to the Professional Sport environ ment in the Czech Republi c STES - The Exclusive Partner for ihe Sale of Czech FA TV Right s Legal Regulation of TV Rights Natu re of TV rights Who will watch? Hint for relevant market definition? Czech and EC Competition Law Other public administr ative bodies involved hi TV rights regulatio n Where to Go for Recourse Concluding Observations
DENMARK S0ren SANDFEI.D JAKOBSEN
309 310 311 311 312 313 313 315 315 317
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XI X
TABLE OF CONTENTS 4.2 4.2.1 4.2.2
Practice regardi ng TV spoil s rights The federati ons' dominant position The 1996 decision on the rights to the premier football league
326 326 327
4.2.3 4.2.4 4.2.5 4.2.6 4.2.7 4.2.S 5.
The publication 'Sport and Television' The 2001 decision regar ding the rights to the premie r football league The 2002 decision regarding handball rights The Competition Report 2006 Establishment of a new sports channel in 2007 The 2007 decision regarding football rights Conclusion
328 328 329 330 330 332 333
F RA NCE
335 33
Pascal KAMINA 1. 1.1 1.2 1.2 1.3 1.3 2. 2.1 2.2 2.2.1 2.2 2
Introduction The organization of sport in Prance The associativ e sector and the role of federations Plan The Legal Framework for the Exploit ation of The Code of Sport Subsistence and ownership of the rights on sporting events Existence of a. sui generis exploitatio n right on sporti ng events Subsistence and definition definition of the siti generis right
2.2.3 2.2.4 2.3 2.3.1 2.3.2
Holders of the exploit ation rights Condition s for sal e: join t sale and rights package s Preservation of the right of information of the publi c Access to stadium and short quotation exemption Events of major importa nce
3. 3.1 3.1.1 3.1.2 3.1.3 3.2 3.2.1
Rights for Sports The regime of the joint selling of TV rights for sporting The first case (200 3) The implementat ion of a specific regulation Practical applicat ions: attribution procedu res and competiti on law Rights other than football Rights relating to sports other titan football
3.2.2
An illustration: the Canal ^/European Rugby Cup Limited (ERQ case (2006)
TV
Rights
335 335 335 33 336 6 336 336 336 336 337 337 337 338 338 338
events
340 340 340 340 341 341 341 342
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XX
TAlil.E OF CONTENTS
GERMANY
Martin SCHIMKE 1. 2.
Implementation Owner of the Transmis sion Rights
2.1 2.2
Footballers Organisers
3. 3.1 3.2 3.3 3.4 4. 5. 6. 7.
Legal Sources Right to determine who ma yo r may not enter Copyright Competition Law Law of torts Transferability of the Rights Exclusive Marketing Central Marketing Resiiieti ve Practices Requests
GREECE Reims loMi-'iois 1. 2. 2.1 2.1.1 2.1.2 3. 3.1 3.2 3.3 3.3.1 3.4 3.5 4. 4.1 4.1.1 4.1.2 4.1.3 4.1.4 5. 5.1 5.1.1
Introduction Spoil and Television Background Sport and television : a symbio tic relationship The increasing cost of sports rights Market for Sport Rights The TV market in Greece The foolball foolball market in Greece The football organisation in Greece EPO 's independence The Super League Current teams Media Rights Ownership and exploitation of the TV rights Main sponsor Who owns the rights? Allocation of TV rights New media rights Competition Law Competition law and TV rights
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TABU; 3. 4. 5. 6. 7. S. 9. 10. 11. 12. (3. 14. 15. 16.
or
CONIUNTS
Copyright and Broadcast ing Rights Tiie Importance of a Contractual Contractual Agreement Television without Frontiers Directive The Television without Frontiers Directive and Irish Law FAI/Sky Deal Comm entar y on the FAI/Sky Deal List of Major Sport ing Events Sports Policy and the European Union Compet ition Policy and Broadcasting Rights Collective Sell ing of Broadcasting Rights Single Entity Theory Devel opin g Areas : New Media Platforms Audiovisual Media Services Directive Conclusion
ISRAEL Joseph Jos eph ESHI-D ESHI-D 1. 2. 3. 4. 5. 6. 7. 8. 9.
Introduct ion The Clubs ' Subordination to the FA's Judicial System The Issue of Broadcas ting Rights over the Past Ten Years A Chall enge to the FA's Ability to Maximize Its Monopo ly Powe r The 2002-20 03 Season Tender Tender The Major Clubs Want Ownership of the Broadcast ing Right s Maccabi Haif a's Argu ments before the FA Supreme Court The FA's Respons e The Judgment ofl he FA Supreme Court
XX I 375 377 378 378 380 3S1 381 381 383 383 384 385 386 386 389
389 389 391 391 392 393 394 394 395
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TABLE OE CONTENTS JAPAN
419
Yoshimi OHARA 1. 1.1 1.2
What What Are TV Broadcas ting Rights and How Are They Protected in Japan? TV broadcas ting rights Copyri ght protection For distributi on ofint ernati onal TV images via satellite
419 419 420
1.3 2.
Rights held by the league/team and 'li cen see s' Who Owns TV Broadca sting Rights and How Are They Exploited in Japan?
421 421
2.1 2.2 3. 3.1 3.1.1 3.1.2 3.1.3 3.1.4 3.1.4 3.1.5 3.1.5.1 3.1.5. 2 3.1.5.3 3.1 .6 3.1.7 3.1.8 3.1.8.1
J-Lea gue (Football ) Japane se Baseball Collectiv e Selling Applica ble regulation Prohib itions under (he Antimo nopoly Law Private monopolization monopolization Unreas onable restraint of trade Unfair trade practices Approach of analysis under the Antim onopoly Law Applica ble prohibition s unde r the Antim onopo ly Law Article 21 of the Antimon opoly Market definitions Collective/joint sales by a single entity Collective/joint sales by multipl e entrep reneur s Collective/joint sales as a package Tie-in sales under the Antimon opoly Law
3.1.8.2
Packaged sales and lie-in sales
LUXEMBOURG Jean-L Jea n-L uc SCIIAIJ SCIIAIJS S
4 2 1
Law
421 422 422 422 422 422 422 423 423 423 424 424 425 425 425 426 427
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TABLE
XX111
OF CONTENTS
5.
TV Broadcasting Rights and (he Right of Access to important Events
4-47 4-47
6.
Summary
449
PO RT UG AL
451
Pedro CARDIGOS, Ricardo HENRIOULS and Goncalo PIMENTEL 1. 2. 3. 4. 5. 6.
introductio n Evolution Legislation Ownersh ip and Nature of the Rights Competition Conclusion
451 452 452 455 457 458
RUSSIA Denis Igorevidi RooAcm-v
461
1. 2. 3. 4.
461 466 471 478
Introduction Legislative Regulation of TV Broadcasti ng Rights to Sporting Competi tions Contracts for for the Transfer of Rights for Television Broadcasting of Competi tions Taxation of Deals for the Sale and Purchase of TV Rights to Sporting Events
SLOVAKIA
481
Pavel HAMEKNIK 1. 2. 3. 3.1
Introduction to the TV Rights Environm ent in Slovak Sport Slovak FA and Its Marketing Parlner(s) Legal Regulation of TV Right to information
Rights
481 482 483 483
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XXIV
TAIJI.T: 01' CONTENTS
SPAIN Jose" M. RI-:Y, Abigail SnuNunai-OW niui Ronald A. OLSTHOORN 1.
1.1 1.2 1.3 1,4 2,
2.1 2.2 2.3 3.
3.1 3.2 3.3
Who Possesses the Image [lights of a Player? Players Who poss esses the legal owners hip of the media rights of a player? Proposals to conceptualize media rights as a notion of copyright Classify a media right to a sport event as a new kind of intellectual property Exploitation ofBrondcasting Rights Sellers and buyers of the rights Scope of tin 'exclusive' broadcasting right Digital broadcasting rights Competition Joint selli ng Exclusivity Joint buying
499
499 499 500 500 500 501 501 502 503 504 504 505 505
SWEDEN Michael Pi.otiUM., Monika VUUN ami tirik Uixm-RO
509
Introduction The football organization in Sweden The football market Ownership and Exploitation of TV Rights
509 509 509 510
1.
1.1 1,2 2.
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XXV 3.2
The questio n of expl oitat ion: are the rights sold individu ally or collectiv ely and
3.2.1
on an exclusive basis or not? Colle ctive selli ng
3.2.2 3.3 3.4 4.
535
A 'juris pruden tial' source Conclusions
537 539
Introduct ion Marketing Rights and Collective Selling Collect ive Sellin g and Anti-Trust Regulation Events of Major Importance Right to Informat ion and Short Extracts Conclusions
UNITED KINGDOM Adrian BARR-SMITH 1. 2. 3. 3.1 3.1 3.2 3.3 3.3
5 3 3
Exclusivity What about competit ion law as to the accepta bility of die collective selling, on an exclusive basis, of broadcasting rights?
UKRAINE AllaSuvms 1. 2. 3. 4. 5. 6.
533 533
Introduction Ownership of Rights Statute Law Relevant to the Issue of Owner ship of Rights Listed events Code of conduct 'A udiovisual Media Service s' (AMS) Directive
5 4 3
543 544 546 546 547 548 5 4 9
549 550 556 556 557 558
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X X VJ
TABLE TABLE OF CONTENTS CONTENTS
7.4 7.5
Satellite radio Mobile phone s and other hand held wirel ess devices
8.
Conclusion
Concluding Remarks
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3 99
ITALY
Luca Ferrari*
1.
INTRODUCTION
In this chapter, we expl ore the Italian scenario of the very current and eve r controversial
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400
I-UCA FERRARI
is that provided by the proper ty or tenancy of the ve nue whe re tite event is staged and, by its organization, the right to control access to the stadium or racecourse, admitting specta tors under contractual restrictions. A similar approach has been adopted in several contine ntal Euro pean juris dictio ns in clud ing Italy.' Howe ver, the latest latest tende ncy see ms to be thai of prov iding a protectio n base d on the idea of an exclusive right in the spor ting eve nt as the result of the spe cific eco no mic activity (value creation) of the organizer or investor. Fro m an idealistic perspec tive , it is the right of the or ganizer of the gam e not to be deprive d of (lie (lie results of its economic activity and investments, in other words the sports spectacle as a new kind of entertainment not protected by copyright and yet whose value cannot be 'siphoned away' to benefit othe r entitie s wifhout wifhout Die Die consent o f the ' o wn er '.
2
This, perspective coincides
with that of the US A, whe re the Courts r ecognize a right in the com mer cial val ue of a
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ITALY
40 1
For the reasons slated above, most oflhe chapter will focus on the broadcasting regula tion applicable lo professional football and basketball. 2.2
La w No. 78 of 29 March 1999 and th e age of indi vidu al selling
In 1999, limited lo football football mat che s, the owne rsh ip issue was settle d by statute : 'Each Se rie A and Serie B f oo tba ll Club is the owne r of the television br oadcastin g right in codified format.'
5
Article 2 of Law 78/1999 h as been for years the onl y Italian statutory
provis ion, wh ich expre ssly affirmed affirmed owner ship of (pay) television television bro adcasting rights; rights; it certainly constituted an important statement as it reinforced (lie then prevailing opinion that rights to football events belong lo the clubs rather than to the league or federation.
6
It must be noted that the statut e did not define the content and the nature of the pay-TV rights. Indeed, the provision appeared as marginal within a law, whose stated objective
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402
LUCA FP FP.K .KRA RARI
the question of individual or collective ownership of match es sched uled within a tourna ment or cham pionsh ip was, and possibly still is, the object of divergent decis ions else where in Europe.
7
In Italy, however, the individual ownership of such rights by the clubs
was generally undisputed at the time.
8
This precept, in conformity with the then only
existing statutory statutory stateme nts, rested with the vast majority of the sc hol ars
9
as well as with
the sports regulators. This conclusion was further supported by recent court decisions concerning the com mercialization of images of the football football games by certain mobil e telephone com panies . We will Inter discu ss this interes ting jur isp rud enc e, but here we stres s thai all decision s move from the premise that the hosting club is the holder of the rights to the economic exploitation of Ihe Ihe game, including its transmission thr ough all med ia .
10
Indeed, as we know, Italian clubs had been selling pay-TV rights individually for some years before statutory recognition in 1999 and their entitlement to the negotiation and
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ITALY
403
Based on this practice, and possibly taking into consideration the notion thai the visit
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LUCA 1-EKUAKI
Therefore, il only applies lo the two professional team sports, namely football and basket
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40 5 distinctive, competitive procedures for the national market; the international market and
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1.1 JCA riiRRAR]
The licence agree men ts shall have a maximu m duration of thre e years. Th e League
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40 7
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