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Sports events organisers' neighbouring right: making sport of copyright law?

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Article in European Intellectual Property Review · November 2022

DOI: 10.2139/ssrn.4630352

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 1

Sports events organisers’

neighbouring right: making sport of
copyright law?
Tatiana Eleni Synodinou, Professor, Law Department, University of Cyprus

1. Introduction
The economic value of sports images and of sports events broadcasting has reached
impressive levels that appeared unthinkable decades ago. While the 1948 Summer Olympics
in London were sold for a fee of £1500, the 2000 Sydney Olympic Games brought in more than
$1.3 billion.1 In the 1986-1987 football seasons, the BBC and ITV acquired the rights to each
broadcast live games of the UK Premier League for a total amount of £3.1 million. During the
2015-2016 season, Sky and BT will broadcast a total of 154 live matches for £1 billion.2
1-002
The sports industry strongly relies on the efficient protection of intellectual property (IP) since
an important part of its revenues is derived from the control over IP rights, and especially of
audiovisual rights, relating to sports events.3 The crucial role of these rights as the primary
source of income for professional sport in the European Union (EU) was recognised in the
Commission’s White Paper on Sport (2007),4 where it was noted that “[a] growing part of the
economic value of sports is linked to intellectual property rights. These rights relate to
copyright, commercial communications, trademarks, and image and media rights.”5

1
Harry Arne Solberg, “The Economics of Television Sports Rights Europe and the US – A Comparative
Analysis” [2002] 9(2) Norsk medietidsskrift,
[Link] accessed 13 April
2021.
2
Francisco Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine and Sophie Valais, “Audiovisual
sports rights – between exclusivity and right to information” (Strasburg: IRIS Plus, European
Audiovisual Observatory, 2016), p. 11.
3
Jacques de Werra, “Reference Guide to Sustaining Sport and its Development through Intellectual
Property Rights” (WIPO, 2022), p. 6, [Link]
[Link].
4
White Paper - White Paper on Sport {SEC(2007) 932} {SEC(2007) 934} {SEC(2007) 935} {SEC(2007)
936} /* COM/2007/0391 final */
5
Commission of the European Communities “White Paper on Sport”, COM (2007) 391 final, section
932.
 2

Sports events organisers enjoy a significant degree of exclusivity over the sports event and its
exploitation, including via audiovisual means. Sport broadcasting has certain specific market
features. Particularly, the event has a “temporary” high value since the audience is mainly
interested in live coverage or as long as the outcome is unknown.6 In this context, the
significant increase in Internet piracy of live sports events has dynamically brought to the fore
the question of the adequacy of the existing legal mechanism to protect the investments and
the creative contributions made by sports events organisers in the digital era.

Illegal live content takes the form of sites dedicated to the pirating of sports content (live
streaming services) or packages of television channels which provide sports content via
television programming services (illegal IPTV services). Unlawful access to sports events
causes significant harm to sports organisers and broadcasters. According to the European
Observatory’s study on the infringement of intellectual property rights,7 illegal revenue worth
€941.7 million was generated by illegal IPTV service providers in the EU in 2018.8 In this
context, the idea of a new special EU intellectual property right has emerged as one of the
possible regulatory paths for enhancing this exclusivity. The latter has quite recently been
proposed in the legislative strategy for the modernisation of copyright rules in the digital
single market, where the EU Parliament suggested, at a late stage, granting sports events
organisers the exclusive right to fix, reproduce and communicate to the public footage of the
sports event.9 However, this proposal has been abandoned.

The aim of this article is to critically assess the introduction of a new neighbouring or sui
generis right for sports events organisers. It is divided into three parts. In the first, the nature
of the exclusivity of sports events organisers will be briefly presented (I). In the second, the
thorny issue of enforcement in the streaming era will be discussed (II), while in the third part

6
Alexander Lelyukhin, “The impact of EU on sport broadcasting: what does the line of recent ECJ
cases signal about?” (2013) 13 Int Sports Law J, pp.104–131, [Link]
0008-2.
7
European Intellectual Property Office, “Illegal IPTV in the European Union: Research on online
business models infringing intellectual property rights – phase 3” (Economic, Legal and Technical
analysis Report, 2019), [Link]
web/secure/webdav/guest/document_library/observatory/documents/reports/2019_Illegal_IPTV_in
_the_European_Union/2019_Illegal_IPTV_in_the_European_Union_Full_en.pdf.
8
HADOPI, Anti-Piracy strategies Concerning Cultural and Sports Content in France and Abroad,
Analysis 2019, 2020, International Survey, p. 9.
9
On 12 September 2018, the European Parliament approved amendments to the draft Directive on
Copyright in the Digital Single Market (COM (2016) 0593). See Amendment number 76 of the draft
which proposed a new Article 12a: “Member States shall provide sport event organizers with the rights
provided for in Article 2 and Article 3 (2) of Directive 2001/29/EC and Article 7 of Directive 2006/115/EC”.
 3

the introduction of a new right for sports events organisers will be analysed within the context
of the public interest (III).

2. The nature and form of the exclusivity of sports events organisers

Even if sports organisers don’t enjoy copyright protection for the event itself (the sporting
event and especially adversarial sports games are not “original works”10), a combination of
multiple other legal tools confers on them an important degree of control (i.e. of exclusivity)
over the event, its recording and its transmission. Indeed, while the CJEU has denied copyright
protection for sports events as such, it has nevertheless left the door open for national forms
of protection in the field of IP.11 According to the Court, “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”.12

At the national level, there are long-established rules and practices regarding the protection
of sports events organisers through a variety of legal means.

It goes beyond the scope of this article to analyse the legal basis and the scope of these various
legal instruments.13 In general, the exclusivity of sports events organisers is based on the so-
called “house right” which derives from the property/possession of the venue combined with

10
The CJEU, in the Football Association Premier League and Murphy rulings, concluded that sports
events as such do not qualify as protected subject matter under EU copyright law. As the Court
stated, football games cannot be classified as works which are the author’s own intellectual creation,
since they are subject to rules of the game which leave no room for creative expressive freedom. See:
Football Association Premier League Ltd and others v QC Leisure and others and Karen Murphy v
Media Protection Services Ltd (Joined Cases C 403/08 and 429/08) EU:C:2011:631. National courts
have also reached similar conclusions. See for instance, Regional Administrative Court Warsaw, 20
February 2015, III SA/Wa 1078/14, OP 2015/3/255-258; Supreme Court of Spain, 25 June 2013 (EDJ
2013/140039) and Sweden (Supreme Court case, NJA 2015 s. 1097: [Link]
domstolen/avgoranden/2015/36097/. See: Tatiana Synodinou, “Audiovisual Coverage of Sports
Events and Copyright Law: Originality in the Details?” in: Intellectual Property and Sports: Essays in
Honour of P. Bernt Hugenholtz (Kluwer Law International, 2021) p. 333. See contra: Lionel Bently,
“The Football Game as Copyright Work” in Intellectual Property and Sports, op cit., p. 305.
11
Thomas Margoni, “The Protection of Sports Events in the EU: Property, Intellectual Property, Unfair
Competition and Special Forms of Protection” (2015). Available at SSRN:
[Link] or [Link]
12
Football Association Premier League Ltd and others v QC Leisure and others and Karen Murphy v
Media Protection Services Ltd (Joined Cases C 403/08 and 429/08) EU:C:2011:631, para.100
13
For a detailed analysis, see: Thomas Margoni, “The Protection of Sports Events in the EU: Property,
Intellectual Property, Unfair Competition and Special Forms of Protection” (2015), op cit.; Francisco
Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine and Sophie Valais, “Audiovisual sports rights –
between exclusivity and right to information” (Strasburg: IRIS Plus, European Audiovisual
Observatory, 2016); Jacques de Werra, “Reference Guide to Sustaining Sport and its
Development through Intellectual Property Rights” (WIPO: 2002),
[Link]
 4

agreements based on that exclusivity,14 classic related rights (broadcasters’ EU related right
and film producers’ EU related right), special related or sui generis rights for sport organisers
or more broadly special forms of protection15 and unfair competition law.16 17

Furthermore, the audiovisual recording of the event can be protected by copyright law on the
condition that the originality standard is met. Since the EU concept of a work appears to
implicitly exclude the application of additional criteria (fixation and categorisation of works in
systems following a closed list of copyright-protected works),18 the broadcasting of sports
events will be protected by copyright law as long as the “author’s own intellectual creation”
standard of originality is met. Given the variety of possible creative choices when filming the
event (selection of images from multiple cameras and angles, selection of how to tell the
“story” of the event, but also additional elements, such as 3D animation, commentaries, and
special effects19), the recording will often qualify as an audiovisual work.20 These choices may
distinguish the broadcasting and filming of the event from the underlying unprocessed facts
of the game. These choices can be expressed in the various creative stages, as noted by the

14
This right confers an exclusivity deriving from the dominium of the right of property/possession of
the premises where the event takes place. This is combined with contractual arrangements regarding
the access to the event and the broadcasting/recording of the event. See: BGH 8 November 2005, KZR
37/03 (“Hörfunkrechte”).
15
The rightholder could be the organiser of the sport competition or the club (event organiser) or
both. Special forms of protection are available in Bulgaria, France, Greece, Hungary, Italy, Romania,
Slovakia and Spain, although the audiovisual rights of sports events are regulated differently under
various legal provisions. See: European Audiovisual Observatory, “Mapping report on national
remedies against online piracy of sports content” (Strasbourg: 2021), p. 17.
16
See: A. Ohly, “Is the Unauthorised Commercial Exploitation of Sports Events Unfair?” in Intellectual
Property and Sports: Essays in Honour of P. Bernt Hugenholtz (Kluwer Law International, 2021), pp.
197-209
17
For a detailed analysis, see: Thomas Margoni, “The Protection of Sports Events in the EU: Property,
Intellectual Property, Unfair Competition and Special Forms of Protection” (2015), op cit.; Francisco
Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine and Sophie Valais, “Audiovisual sports rights –
between exclusivity and right to information” (Strasburg: IRIS Plus, European Audiovisual
Observatory, 2016); Jacques de Werra, “Reference Guide to Sustaining Sport and its
Development through Intellectual Property Rights” (WIPO: 2002),
[Link]
18
The CJEU’s definition of the concept of “work” consists only of two elements: originality and
expression. A contrario, additional criteria appear to be implicitly excluded. See: Griffiths, for whom the
CJEU’s approach on creativity would not function simply as a necessary precondition for the existence
of a copyright work, but as a synonym for “work” and, therefore, as the only relevant determinant of
entitlement to copyright protection: Jonathan Griffiths, “Dematerialization, Pragmatism and the
European Copyright Revolution” (2013) 33(4) Oxford Journal of Legal Studies, 767, p. 782.
19
The protection of special effects by copyright law was examined in the Football Association Premier
League case, where the CJEU recognised the possibility of copyright protection of additional
constituent elements of the filming, such as graphics and anthems displayed during broadcasting. See:
Joined Cases C-403/08 and 429/08 (footnote 10), para. 149.
20
See for instance OLG Frankfurt a. M., Urteil vom 14.12.2021 – 11 U 53/21.
 5

CJEU in Painer: in the preparation phase, when filming the event and by making editorial
choices after the filming phase.21

From the above it is clear that sports events organisers already enjoy a significant degree of
exclusivity over the event, its recording, transmission, and exploitation. Even if this exclusivity
appears as a complex construction which consists of the combination of various legal
instruments coupled with contractual arrangements, organisers of sports events enjoy
significant control over the event and its dissemination.

Indeed, as concluded by a study conducted by the Asser Institute on sports organisers’ rights,22
there is no evidence that the rights and interests of sports organisers are not generally well
safeguarded at the substantive legal level, since “either way, the combination of house right,
media contract(s), and intellectual property protection of the audiovisual recording and
broadcast effectively allows the sports events organisers to enjoy complete ownership and/or
control over the audiovisual rights in the sports events”.

Certainly, seen from an EU level, this amalgamation of national solutions results in a rather
curious and opaque legal patchwork. In this context, the main question from a policy point of
view is whether the introduction of a new EU, uniform, special IP right for organisers of sports
events would add more clarity and whether this new right would provide more effective
protection to sports events organisers than that which they already enjoy.

A parallel can be drawn with the database sui generis right which the EU Database Directive
granted to database producers. This right provided a rather uniform EU legal basis for the
protection of the investments made by database producers for the collection, the verification,
and the presentation of a database’s contents against harmful unauthorised extraction and
reutilisation. At the same time, 26 years after its adoption, the effectiveness of this right is still
being debated.23 This controversial precedent calls for careful consideration when the

21
Eva-Maria Painer v Standard Verlags GmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-
Verlag Rudolf AUGSTEIN GmbH & Co KG and Verlag M. DuMont Schauberg Expedition der Kölnischen
Zeitung GmbH & Co KG (C-145/10) EU:C:2011:798.
22
Asser Institute Centre for International & European Law, “Report on Study on sports organisers’
rights in the European Union” (2014), [Link]
23
See: Study in support of the evaluation of Directive 96/9/EC on the legal protection of databases ,
Final Report, 2018. According to the Report, “the effectiveness of the sui generis right, as a means to
stimulate investment on databases, remains unproven and still highly contested. In consequence,
highly vocal stakeholders and commentators have proposed its abolition. However, most of the
database makers who participated in the workshop organised in the context of the Study reported
that it is an effective means to protect databases which is often used alongside other means of
protection, such as contractual terms, copyright and technological measures”.
 6

introduction of a new intellectual property and, more specifically, of a sui generis right, is
advanced.

3. The thorny issue of enforcement in the era of streaming

Another factor of complexity is the efficacy of these various tools to protect the interests of
the sports organisers especially with respect to online digital piracy.

Sporting piracy has developed to the point where any user can have easy illegal access to live
sporting events via various means. This is extremely harmful, since the value of a sports event
broadcast lies in the fact that it is live and most of its value is lost when the event ends, so

Therefore, the crucial question is whether these legal tools offer adequate protection for the
interests of sports organisers and the challenges they face, especially in the digital era.

The issue of the introduction of a new neighbouring right for sports organisers at an EU level
emerged during the discussions on the Directive on copyright and related rights in the Digital
Single Market Directive24 when in 2018 there was an attempt to introduce such a right in the
text of the Directive. The Legal Affairs (JURI) Committee advanced a proposal for a new article
12a, which aimed to introduce new exclusive related rights of fixation, reproduction and
making available for sports events organisers. This right would be added to existing copyright
and related rights protection for sports events and transmissions and, par consequent, sports
organisers would be elevated to a standalone category of related rights holders in the acquis.25
However, the attempt has ended in failure.

Nevertheless, the Commission has highlighted the importance of the issue and stated that it
will assess the challenges of sports events organisers in the digital environment, in particular
issues related to the illegal online transmission of sports broadcasts.26

24
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on
copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and
2001/29/EU (2019) OJ L 130.
25
J. P. Quintais, “Do we need more copyright protection for sports events” in Intellectual Property and
Sports: Essays in Honour of P. Bernt Hugenholtz (Kluwer Law International, 2021), p. 149.
26
A8-0245/272 Statement of the Commission (20.3.2019). Declaration on Sports Events Organisers,
available at: [Link]
 7

Since then, a study27 and a report28 of the EU Parliament have dealt with the question. These
have been followed by the EU Parliament’s resolution of 19 May 2021 with recommendations
to the Commission concerning the challenges faced by sports events organisers in the digital

The Resolution acknowledges the great value of sports events for society, the economy and
culture and the new perspectives and challenges brought to the sports ecosystem by the
digital revolution. As it noted, “… the development of the digital environment and of new
technologies has made it easier for all fans to access sports events broadcasts on all kinds of
devices, increasing potential exposure to illegal content and enlarging the number of people
who can access such broadcasts, and has offered opportunities for sports that are traditionally
not broadcasted, to get more visibility; whereas, furthermore, it has boosted the development
of new online business models, creating new ways of generating revenue; whereas, at the
same time, it has facilitated the illegal online transmission of sports broadcasts and online
piracy within and outside the Union, which is detrimental to both professional and grassroots
sports and threatens the organisation and sustainability of sports events, as well as the
financial stability of the whole sports sector”. Regarding the protection of sports events
specifically, the Resolution underlines that “the problem with existing measures is that
enforcement comes too late” and “calls on the Commission to clarify and adapt existing
legislation, including the possibility of issuing injunctions requesting the real-time blocking of
access to or removal of unauthorised online content”.

In particular, as regards the question of the introduction of a new right, the Resolution notes
that such neighbouring rights exist in the laws of some Member States, but considers that “the
creation in Union law of a new right for sports events organisers will not provide a solution as
regards the challenges they face that arise from a lack of effective and timely enforcement of
their existing rights”.

Therefore, it is not clear whether the introduction of such a right will resolve the main problem
of sports events organisers which is a question of enforcement, rather than a legal gap
regarding the exclusive prerogatives they already enjoy.

27
Lauro Panella and Matteo Firrito, “Challenges facing sports event organisers in the digital
environment: European added value assessment” (EPRS - European Parliamentary Research Service:
December 2020), available at:
[Link]
df.
28
Committee on Legal Affairs (Rapporteur Angel Dzhambazki), “Report with Recommendation to the
Commission on challenges of sports events organisers in the digital environment” (23 April 2021).
 8

The enforcement dimension of the transmission of live sporting events, and especially the
issue of enforcement through dynamic and live injunctions has been pinpointed by the
EUIPO’s study on dynamic blocking injunctions in the EU and the European Audiovisual
Observatory’s mapping report on national remedies against online piracy of sports content.29

The EUIPO’s study on dynamic blocking injunctions in the EU emphasises both the efficacy of
such injunctions and the lack of a regulatory framework which would provide a solid legal
basis for such enforcement measures.

As it is stated, there is no explicit statutory notion of dynamic blocking injunctions at an EU

level. Therefore, national courts have been granting dynamic blocking injunctions on the basis
of an expansive interpretation of pre-existing norms. Additionally, live blocking injunctions
have been applicable in Ireland, Spain and the UK with the principal goal of limiting the
infringement of rights relating to live sports events. However, live blocking injunctions are not
available in other Member States or, at least, their availability has not yet been tested in
court.30

The European Audiovisual Observatory’s mapping report also notes that there is no specific
injunction procedure provided in EU or national law in the case of illegal broadcasting or
streaming of live sports events.31

Another question related to the enforcement issue is the entitlement of sports organisers to
take legal action in the event of infringement. Indeed, one of the main arguments in favour of
the introduction of a new neighbouring right for sports events organisers within the context
of better enforcement could be that a clear standalone right would provide a more solid basis
for entitlement in enforcement proceedings. Indeed, the current nature of the rights has a
direct impact on their entitlement to take legal action. Depending on the nature of protection,
sports events organisers can either be entitled to take legal action erga omnes (on the basis
of the classic copyright and related rights protection or of a special neighbouring right or other
special protection) or only inter partes (mainly on the basis of the “house right” combined
with contractual arrangements). However, according to the European Audiovisual

29
European Audiovisual Observatory, Mapping report on national remedies against online piracy of
sports content, Strasbourg 2021, available at: [Link]
remedies-against-online-piracy-of-sports-co/1680a4e54c.
30
European Union Intellectual Property Office, “Study on dynamic blocking injunctions in the EU
European Union Intellectual Property Office” (2021), p. 8.
31
European Audiovisual Observatory, Mapping report on national remedies against online piracy of
sports content, Strasbourg 2021, available at: [Link]
remedies-against-online-piracy-of-sports-co/1680a4e54c, p. 72
 9

Observatory’s mapping report, this diverse spectrum of entitlement does not appear to be an
obstacle for taking legal action. The report notes that, in general, rightsholders and assignees
of the exploitation rights are entitled to take legal action in all the covered countries, even if
it is on a different legal basis and for different types of legal action.32

4. The public interest perspective

The question of the effective protection of sports events should not be analysed only from the
perspective of the sports organiser but should also be framed in a broader socio-cultural and
economic context. The introduction of such a right is a complex, multi-layered and
controversial issue that touches on wider questions, dilemmas, and dynamics.

Specifically, at the core of the current debate lies the need to introduce new neighbouring or
sui generis rights in general and even more broadly the question of the extension of the
spectrum of exclusivity conferred by intellectual property rights. The introduction of a new
intellectual property right (neighbouring right or sui generis right) should be subject to the
intellectual property paradigm which is based on a balance between private and public
interests.

In the following paragraphs, the introduction of a new IP right for sports events organisers will
be debated within the context of the public interest. Specifically, two questions will be
discussed. First, what would the justification for a new right be (1)? Second, how could a
balance of interests be better achieved and more particularly, how could freedom of
expression be safeguarded (2)?

4.1 The justification issue

Undoubtedly, nobody can contest the social, economic and even cultural significance of sport
events. The EU Parliament’s Resolution on challenges of sports events organisers in the digital
environment emphasises that “[s]port events are of immense social and cultural value.
whereas sport plays a key role in the social, cultural and economic prosperity of the Union and

32
European Audiovisual Observatory, Mapping report on national remedies against online piracy of
sports content, Strasbourg 2021, available at: [Link]
remedies-against-online-piracy-of-sports-co/1680a4e54c, p. 72
 10

promotes common values of solidarity, diversity and social inclusion, making significant
contributions to the economy and to social development”.33

This importance certainly calls for regulatory measures which would safeguard an appropriate
level of protection for sports events and for the entities that organise and produce them.
However, is the protection by a new IP right the appropriate form of protection?

New intellectual property rights (neighbouring or sui generis rights) are temporary
monopolies. They are exceptions to the public domain and restrictions to freedom of
competition and they need to be carefully justified.

So, one crucial question is whether there is a solid justification for the introduction of a new
right for the benefit of sports organisers. The main justification for such a right appears to be
to encourage investment and to reward sport organisers for the investments they made to
produce the event. The grant of a temporary intellectual property right would allow the sports
organiser to recoup the significant costs. This line of reasoning has underlain the
establishment of the entrepreneurial neighbouring rights within the EU.34

If there is insufficient legal protection, then there is a risk that no investment will be made. In
other words, sports events organisers would cease their investments,35 and there will be
market failure. As noted by Antoon Quaedvlieg, market failure will happen not only when
existing protection is insufficient, but also when it relies on norms that provide too much or
inadequate protection. As regards the latter, inadequate forms of protection may obscure the
clarity of law. For Quaedvlieg, the protection of sports events organisers by the existing legal

33
European Parliament resolution of 19 May 2021 with recommendations to the Commission on
challenges of sports events organisers in the digital environment (2020/2073(INL)), available at:
[Link]
34
See recital 5 of the Directive 2006/115/EC of the European Parliament and of the Council of 12
December 2006 on rental right and lending right and on certain rights related to copyright in the field
of intellectual property (2006) OJ L 376: “(5)The creative and artistic work of authors and performers
necessitates an adequate income as a basis for further creative and artistic work, and the investments
required particularly for the production of phonograms and films are especially high and risky. The
possibility of securing that income and recouping that investment can be effectively guaranteed only
through adequate legal protection of the rightholders concerned”; See Recitals 7 and 8 of the
Database Directive; For a criticism, see: P. Kamina, “Towards New Forms of neighbouring rights within
the European Union?” in Intellectual Property in the New Millennium: Essays in Honour of William R.
Cornish (Cambridge: Cambridge University Press, 2004), p. 281-282. For a criticism of neighbouring
rights based on technological investment that do not provide for a threshold test, see: P.B.
Hugenholtz, “Neighbouring Rights are Obsolete” (2019) 50 IC – International Review of Intellectual
Property and Competition Law 1006, pp.1006–1011.
35
For the justification of intellectual property, see: W. Fisher, “Theories of Intellectual Property” in
New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press,
2000); Edwin C. Hettinger, “Justifying Intellectual Property” (1989) 18 Philosophy & Public Affairs 31.
 11

framework is inadequate, since the “house right and remedies derived from unfair
competition law are not meant to serve to protect sports events”.36

Prima facie, it seems that in the case of sport events, the production of the event requires
very significant investments (e.g. facilities, organisation, technical means, human resources).
It is also undeniable that Internet piracy threatens the economic model of recoupment of this
investment. Furthermore, the selling of audiovisual rights has become one of the main pillars
of the revenue stream for professional sport.37 So, the basis for a new right would be the
investment in the business enterprise of production and subsequent organisation of the
dissemination of the sport event (subject matter of protection), which is a specific
achievement of an industrial nature.

However, sports events organisers have not been commercially acting within a gap of legal
protection. They have already been enjoying for decades various forms of exclusivity which
has enabled them to attract significant revenues from the dissemination of sports events
through television and other media. In other words, the existing protection has acted as a
sufficient incentive. In this context, if additional IP exclusivity is granted while there is no
significant need to incentivise their business model, this might lead to welfare cost.

In light of the above, in our view and from a public interest perspective, a justification of the
introduction of a new right should be posed quite differently. Would the introduction of a new
right offer a more effective and better enforced exclusivity to sports events organisers than
the one they enjoy now?

Here, there are arguments for and against.

Given the cross-border character of Internet sports piracy and the patchwork of national legal
approaches, a new right at an EU level would a priori provide a more clear and solid basis for
protection. It could also clarify the position of sports organisers as regards their entitlement
to take legal action.

However, in the lack of effective special enforcement procedures for the transmission of live
sport events, the introduction of a new right would mainly be symbolic. Furthermore, the
addition of a new right might have the reverse effect of further complicating the legal

36
A. Quaedvlieg, “Organisers of Sport Events: A Neighbouring Right?” in Intellectual Property and
Sports: Essays in Honour of P. Bernt Hugenholtz (Kluwer Law International, 2021), p. 176-177.
37
Francisco Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine and Sophie Valais, “Audiovisual
sports rights – between exclusivity and right to information” (Strasburg: IRIS Plus, European
Audiovisual Observatory, 2016).
 12

framework, since the organisers will combine this right with the existing tools they already
enjoy (“house right”, rights based on contract, copyright and related rights, special forms of
protection in case the latter are not pre-empted by the new right, and unfair competition law
remedies).

This proliferation of legal exclusivity tools in favour of sports organisers might interfere with
the interests of copyright holders over both the recordings and broadcasters. Indeed, long-
established practices of selling and transmission of audiovisual sports rights are often based
on the bargaining between sports events organisers (federations or individual clubs) and
broadcasters.

In the case of audiovisual recordings of football games, if the recording is carried out by the
sports event’s organiser, copyright and rights related to the recording would be held by the
organiser. If the recording is carried out by a broadcaster, the rights would then be
contractually licensed to the sports event’s organiser. The strengthening of the position of the
sports event’s organisers would impact the complex and delicate balances that are already in
place.

Furthermore, and more significantly, the introduction of a new right will also interfere with
the public interest of the public to have access to sport events.

4.2 The freedom of information dimension

Indeed, there is also another equally important public interest dimension regarding the
introduction of a new right for sports events organisers.

Sports events, thanks to their social and cultural importance, attract a tremendous interest
from the public and the media.

This importance calls for the need to safeguard fair and appropriate access to these events
both for the public to enjoy and for the media to report these events. In this context, the
proper balancing between exclusivity and freedom of expression is crucial.38 The gradual

38
There is vast bibliography for the relationship of copyright and freedom of expression. See, inter alia:
P.B. Hugenholtz, “Copyright and freedom of expression in Europe” in Innovation Policy in an
Information Age (Oxford: Oxford University Press, 2000); A. Strowel, “Droit d’auteur et accès à
l’information”, in Copyright: A Right to Control Access to Works? (Bruylant, 2000), p. 5; Christophe
Geiger, “Droit d’auteur et droit du public à l’information: approche de droit comparé” (Paris: Litec,
2004); J. Griffiths and U. Suthersanen (eds.), Copyright and Free Speech (Oxford: Oxford University
Press, 2005); Christophe Geiger and Elena Izyumenko, “Copyright on the Human Rights’ Trial:
Redefining the Boundaries of Exclusivity through Freedom of Expression” (2014) 45 IIC 316; D.
 13

recognition by both the European Court of Human Rights39 and the CJEU40 of the need to
safeguard the balancing of copyright and related rights with freedom of expression has
marked a constitutional turn41 in EU copyright law.

This potential conflict between fundamental rights of citizens, such as the right to access and
receive pluralistic information, and economic principles applicable to the exclusive sale of
audiovisual sport rights was addressed by the Audiovisual Media Services Directive (AVMSD)42
which introduced two sets of rules to respond to this need. These are the legal provisions on
the “events of major importance to society” and on the right to short reporting on “events of
high interest”. Article 14 of the AVMSD provides that each Member State may take measures
to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis
events which are regarded by that Member State as being of major importance for society, in
such a way as to deprive a substantial proportion of the public in that Member State of the
possibility of following such events by live coverage or deferred coverage on free television.
According to Article 15 of the AVMSD, Member States shall ensure that for the purpose of
short news reports, any broadcaster established in the Union has access on a fair, reasonable
and non-discriminatory basis to events of high interest to the public which are transmitted on
an exclusive basis by a broadcaster under their jurisdiction.

Voorhoof, “Freedom of Expression and the

Right to Information: Implications for Copyright” in Research Handbook on Human Rights and
Intellectual Property (Cheltenham: Edward Elgar, 2015), p.331; Christophe Geiger and Elena Izyumenko,
“The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien, Pelham and
Spiegel Online Decisions of the CJEU: Progress, But Still Some Way to Go!” (2020) 51 IIC 282.
39
See: Ashby Donald and Others v France (no. 36769/08) CE:ECHR:2013:0110JUD003676908; Neij and
Sunde Kolmisoppi v Sweden (no. 40397/12) CE:ECHR:2013:0219DEC004039712.
40
See for instance: Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL
(SABAM) (C-70/10) EU:C:2011:771; SABAM v Netlog (C-360/10) EU:C:2012:85; UPC Telekabel Wien
GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH (C-314/12)
EU:C:2014:192; Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others (C-201/13)
EU:C:2014:2132; GS Media BV v Sanoma Media Netherlands BV and Others (C-160/15)
EU:C:2016:644.
41
In general, for the increasing role of the EU Charter as a bill of rights of the European Union, see:
Grainne De Burca, “After the EU Charter of Fundamental Rights: The Court of Justice as a Human
Rights Adjudicator?” (2013) 20 Maastricht Journal of European & Comparative Law 168.
42
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the
coordination of certain provisions laid down by law, regulation or administrative action in Member
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)
(2010) OJ L 95.
 14

Specifically, the latter responds to specific information needs in news programmes and
entitles any broadcaster to access the highlights of events that are of particular relevance, but
not necessarily listed.43

Furthermore, fan culture is an essential element of the sport industry ecosystem. A dynamic
feature of the fan culture is that fans often report these events through social media.

So, the question is whether the existing legal framework of protection of sports events
organisers sufficiently takes into account this socio-cultural dimension and what would be the
influence of the introduction of a new sports events organisers’ right on the interest of the
public to have access to sports events for information purposes.

The answer is not straightforward here either. The public interest in safeguarding public
access to intellectual property protected subject matter is effected by the establishment of a
number of restrictions which keep the balance between the public interest in rewarding
creators and investors in the cultural industries and the public interest in providing access to

In the absence of a specific, tailor-made IP regime, general copyright rules on exceptions and
limitations apply. Are these rules balanced, adequate and sufficient in order to safeguard the
access of the public to the event?

This is far from certain. Quotations of sports events in the media are often extremely short.
Even if both the quotation44 and the news reporting exceptions45 are well-established in
international and EU copyright law, governing bodies and broadcasters can still place
restrictions on how much content (amount of video) can be shared through traditional media

43
Francisco Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine and Sophie Valais, “Audiovisual
sports rights – between exclusivity and right to information” (Strasburg: IRIS Plus, European
Audiovisual Observatory, 2016), p. 35. As to the details concerning the exercise of this right, it is for
the member states to ensure “in accordance with their legal systems and practices, that the
modalities and conditions regarding the provision of such short extracts are defined. This concerns:
compensation arrangements, but which are nonetheless limited to the additional costs directly
incurred in providing access; the maximum length of short extracts; and the time limits regarding their
transmission, or so-called waiting periods”.
44
Article 10 of the Berne Convention for the Protection of Literary and Artistic Works; Article 5(3) (d)
of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society (2001) OJ L
167; Article 17 (7) of Directive 790/2019 of the European Parliament and of the Council of 17 April
2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC
and 2001/29/EC (2019) OJ L 130.
45
Article 10bis of the Berne Convention for the Protection of Literary and Artistic Works; Article 5(3)
(c) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society (2001) OJ L
167.
 15

and media platforms.46 Indeed, the “house right” can be enforced by a mechanism of
accreditation that can define the conditions relating to the broadcasting of sports games for
news reporting.47

The AVMSD’s safeguards apply only to linear services and the discretion left to Member States
regarding their implementation results in a complex legal patchwork at the EU level. As to the
details concerning the exercise of the short reporting right, it is for the Member States to
ensure “in accordance with their legal systems and practices, that the modalities and
conditions regarding the provision of such short extracts are defined”. This concerns the
maximum length of short extracts.48

Furthermore, algorithmic platform enforcement may also significantly endanger fans’, digital
media’s and bloggers’ right to quotation, parody and news reporting. As Bernt Hugenholz
notes, the automatic detection and blocking of infringing content by the platforms, based on
content fingerprints provided by right holders, has created the risk of overprotection. This is
why, for example, Champions League football highlights uploaded by enthusiastic football
fans disappear from YouTube so quickly.49

So, the possible introduction of a new right for sports events organisers needs to carefully
take into account the public interest dimension. The introduction of such a right will add
another layer of exclusivity to the important legal arsenal of rights that sports events
organisers enjoy on the basis of various legal means. Even if a new right were to be
accompanied by a set of robust exceptions for the safeguarding of the right of information,
the whole bundle of exclusivity enjoyed by the sports events organisers would need to be
counterbalanced by a set of exceptions which would efficiently respond to the interest of the
public to have a fair access to sports events. These exceptions need to be mandatory, unable
to be contractually and technologically overridden, to apply horizontally – regardless of the

46
Stephen W. Dittmore and Tiffany E. Fields, “Content, copyright and carriage: Issues for sports media
rights in the digital era” in Routledge Handbook of Sport Communication (2013), p. 231.
47
Jacques de Werra, “Reference Guide to Sustaining Sport and its Development through Intellectual
Property Rights” (WIPO, 2022), p. 27, [Link]
sport/en/pdf/[Link].
48
Francisco Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine and Sophie Valais, “Audiovisual
sports rights – between exclusivity and right to information” (Strasburg: IRIS Plus, European
Audiovisual Observatory, 2016).
49
P. Bernt Hugenholtz, “Groundhog Day in Geneva: The WIPO Broadcasting Treaty is on the Agenda
Once Again” (Draft paper prepared for American University International Law Review Symposium on
the Right to Research in International Copyright Law, 22 April 2022).
 16

legal basis of protection – and to ensure fair access of the general public to the broadcasting
and the reporting of the event.

The imperative need to safeguard the legitimate sharing of highlights and of information
related to the sports events has also been emphasised by the EU Parliament’s Resolution
where it is noted that the illegal transmission of a whole sports event is to be distinguished
from short sequences shared among and by fans that pertain to a fan culture, from content
legally shared under limitations and exceptions provided for in copyright law, or content
shared by journalists for the purpose of informing the general public, as set out in the AVMSD,
and that the measures aimed at protecting broadcast rights against illegal use and piracy must
not affect press freedom or the news media’s ability to inform citizens.50

5. Conclusion
In conclusion, the introduction of a new sports organisers’ neighbouring right might in
principle provide an additional, more transparent, clear and uniform legal basis for protection
at an EU level especially if is to be established through a Regulation and not a Directive. It will
also have valuable symbolic significance regarding the recognition of the important level of
investments made by sports organisers and their role as producers of events with great social,
cultural and economic value. However, the combination of a new IP exclusive right with the
existing legal tools will not necessarily lead to more legal certainty, but could possibly result
in more complexity. Furthermore, the genesis of a new intellectual property right will lead to
a level of exclusivity which needs to be cautiously counterbalanced with the interest of the
public and the media to have fair access to sports events. Given the fact that a sport event
itself is mainly information (facts) and that the legal basis for such a right is clearly investment
and not creativity, strong, significant and enforceable exceptions should be established in case
such a right is finally adopted. These exceptions also need to apply horizontally regarding the
protection through other legal means, inside or outside copyright law, in order to effectively
and meaningfully safeguard the right of information.

At the same time, more exclusivity won’t necessarily provide a solution to the problem of
enforcement that sports events organisers already encounter. Enforcement has become a
multidimensional issue too. A constitutional approach has dynamically emerged in IP Internet

50
European Parliament resolution of 19 May 2021 with recommendations to the Commission on
challenges of sports events organisers in the digital environment (2020/2073(INL)), available at:
[Link]
 17

enforcement procedures. This approach calls for a balanced protection of all fundamental
rights at stake.

First, the balancing of rights and interests should guide the issuance of static and dynamic
blocking injunctions and their availability. In this context, the establishment of a uniform
regulatory framework at the EU level would be welcome.

Regarding platform automatic enforcement, the safeguarding of freedom of expression

depends on whether algorithms are sophisticated enough to distinguish lawful uses made for
quotation, criticism and review to ensure that the exceptions to exclusivity will be effectively
safeguarded and that only manifestly infringing content may be blocked. At the same time,
the safeguards of the AVMSD should be strengthened, adapted to the digital era and serve as
a model of a horizontal EU policy regarding the access and the information of the public to
events of high social and cultural importance. In this respect, sports events organisers should
also have the responsibility of increasing the availability of affordable legal content in a way
that meets the demands of the public.51

51
S. van Gompel, “Sports as Policy Levers in Intellectual Property Lawmaking” in Intellectual Property
and Sports: Essays in Honour of P. Bernt Hugenholtz (Kluwer Law International, 2021), p. 126.

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