/>iScale of the piracy problem
The threats posed to the funding of sport by media rights piracy is nothing new. However, as recognised by the European Parliament in its resolution published 19 May 2021, developments in digital technology and the proliferation of access to digital content (in particular through IPTV) have, in turn, increased the potential exposure of sports fans to pirated content.
In its report[1] prepared in December 2020, the European Parliamentary Research Service found that in 2019:
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6 million subscriptions were made to illegal broadcasting platforms in the EU;
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these subscriptions generated illicit subscription revenues of an estimated 522 million EUR; and
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if the same number of subscriptions were made legally, authorised broadcasters’ revenues could increase by 3.4 billion EUR each year.
Furthermore, a report published this year by Synamedia and Ampere Analysis has found that sports rights holders and streaming services lost $28.3 billion globally as a result of piracy in 2020.
Background to the proposals by the European Parliament
Against this backdrop, the European Parliament has put forward its recommendations to harmonise the current patchwork legislative approach to sports rights piracy across the EU.
A key driver for the European Parliament’s proposed action to support sports rights owners is the recognition that “unlike other sectors, most of the value of a sports event broadcast lies in the fact that it is live and most of that value is lost when the event ends”.
The rapporteur for the proposals, Angel Dzhambazki, has also recognised “The piracy of live sport events is a major challenge for sport event organisers. The problem with existing measures is that enforcement comes too late. The report calls on the [EU] 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”[2].
Nevertheless, the EU Parliament does, however, propose that any amended legal framework should strike the right balance between the need for efficacy in enforcement whilst also:
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ensuring that the measures strictly target infringing content and do not lead to the arbitrary and excessive blocking of legal content; and
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otherwise protecting third party rights, including those of service providers (particularly small businesses, SMEs and start-ups), fans and consumers.
Proposals by the European Parliament
Legislative Proposals
Pursuant to its resolution, the European Parliament has requested that the EU Commission submit a proposal for legislative change, which addresses, among other things, the following:
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establishing a common EU-wide quality and technical reliability standard for software tools deployed by rights holders, intermediaries and other service providers, in order to identify illegal broadcasting of live sports events with a view to creating a certification scheme for “trusted flaggers”;
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clarifying the requirement for the removal of, or disabling of access to, online illegal live sports event content as fast as possible and in any event no later than within 30 minutes of the receipt of notification from rights holders or from certified trusted flaggers;
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allowing for immediate take down procedures targeting illegal live sports event content, provided that there is no doubt about the ownership of the right concerned and that the transmission was not authorised;
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ensuring that the measures to be taken by intermediaries are effective, justified and proportionate by making sure, for example, that the removal of, or the disabling of access to, illegal content does not require the blocking of an entire platform containing services that are legal; and
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taking measures that make it easier to find legal means of accessing sports content, including by regularly updating the list of authorised providers on the European Online Content Portal, Agorateka, and ensuring that viewers are informed of such legal means and how to use such means to access content when blocking measures are enforced.
Amendments to the IP Enforcement Directive[3]
The EU Parliament has also recommended amendments to the IP Enforcement Directive, which include introduction of measures to address the following:
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allowing the use of blocking injunctions that run during the entire live broadcast of a sports event, but are limited to the duration of the live broadcast, thus blocking the infringing website only for the duration of the event;
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harmonising legislation allowing, where live sports events are concerned, for the use of injunctions that should have the effect of blocking the access not only to the infringing website, but to any other website that contains the same infringement, regardless of the domain name or IP address used, and without the need for a new injunction to be issued;
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reinforcing cooperation between Member States’ authorities, including by way of exchange of data and best practices and by creating an active and up-to-date network of national authorities; and
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reinforcing the cooperation between intermediaries and rightholders, including by promoting the conclusion of Memoranda of Understanding providing for a specific notice and action procedure.
Commentary
The EU Commission will now consider the EU Parliament’s proposals. Whilst the threat posed to the sports industry by piracy in today’s digital world will remain, the recommendations by the EU Parliament would appear to be a step in the right direction. However, the successful implementation of any enforcement regime will be dependent on technical aspects as well as legal.
In the context of blocking injunctions, it should be noted that the UK has very much been at the forefront of adoption of such measures. The first live blocking injunction was issued by the English High Court in March 2017 to tackle illegal streaming of live Premier League match footage[4] and a similar order was issued to prevent streaming servers delivering infringing streams of boxing matches promoted by Matchroom, including those involving world heavyweight champion, Anthony Joshua[5].
Whilst dynamic injunctions have been adopted in numerous EU member states, their technical implementation has not yet been harmonised. For example, only a limited number have focused on blocking the entire IP address rather than being limited to mere domain name system blocking (which is commonly now circumvented). It would seem therefore that greater harmonisation is needed and, arguably, overdue.
In its resolution, the EU Parliament also raised the issue of the benefit of a new proprietary right for sports event organisers. Whilst the EU Parliament was of the view that such a new right would not necessarily solve the piracy challenges it considers the sports industry to be facing, consideration of the merits of such new right in this forum will no doubt be of interest to rights owners.
[1] https://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_STU(2020)654205
[3] Directive 2004/48/EC
[4] Football Association Premier League Ltd v BT and others [2017] EWHC 480 (Ch)
[5] Matchroom Boxing Ltd and others v British Telecommunications plc and others [2018] EWHC 2443 (Ch))
Co-authored by Hannah Meehan
