Procedure : 2020/2073(INL)
Document stages in plenary
Document selected : A9-0139/2021

Texts tabled :

A9-0139/2021

Debates :

PV 17/05/2021 - 18
CRE 17/05/2021 - 18

Votes :

PV 18/05/2021 - 13
PV 19/05/2021 - 2

Texts adopted :

P9_TA(2021)0236

<Date>{23/04/2021}23.4.2021</Date>
<NoDocSe>A9-0139/2021</NoDocSe>
PDF 241kWORD 88k

<TitreType>REPORT</TitreType>

<Titre>with recommendations to the Commission on challenges of sports events organisers in the digital environment</Titre>

<DocRef>(2020/2073(INL))</DocRef>


<Commission>{JURI}Committee on Legal Affairs</Commission>

Rapporteur: <Depute>Angel Dzhambazki</Depute>

(Initiative – Rule 47 of the Rules of Procedure)

Rapporteurs for the opinion (*):

Tomasz Frankowski, Committee on Culture and Education

(*) Associated committees – Rule 57 of the Rules of Procedure

AMENDMENTS
MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION
 ANNEX TO THE MOTION FOR A RESOLUTION: RECOMMENDATIONS AS TO THE CONTENT OF THE PROPOSAL REQUESTED
 EXPLANATORY STATEMENT
 OPINION OF THE COMMITTEE ON CULTURE AND EDUCATION
 INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION

with recommendations to the Commission on challenges of sports events organisers in the digital environment

(2020/2073(INL))

The European Parliament,

 having regard to Article 225 of the Treaty on the Functioning of the European Union (‘the TFEU’),

 having regard to Article 114 TFEU,

 having regard to the Charter of Fundamental Rights of the European Union and in particular Articles 7, 8, 11, 16, 17(2), 47 and 52 thereof,

 having regard to 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/EC[1],

 having regard to the Commission’s Statement on sport event organisers, annexed to the European Parliament legislative resolution of 26 March 2019 on the proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market[2],

 having regard to Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC[3],

 having regard to Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market[4],

 having regard to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights[5] (the Enforcement Directive),

 having regard to Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')[6],

 having regard to 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[7],

 having regard to 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’) [8],

 having regard to the Commission Recommendation (EU) 2018/334 of 1 March 2018 on measures to effectively tackle illegal content online[9] and the Communication from the Commission of 28 September 2017 to the European Parliament, the Council and the European Economic and Social Committee, entitled “Tackling Illegal Content Online: Towards an enhanced responsibility of online platforms” (COM(2017)0555),

 having regard to the Communication from the Commission of 29 November 2017 to the European Parliament, the Council and the European Economic and Social Committee entitled “Guidance on certain aspects of Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights” (COM(2017)0708),

 having regard to the Memorandum of Understanding of 25 June 2018 on online advertising and intellectual property rights facilitated by the European Commission and the Report of the Commission on the functioning of the Memorandum of Understanding on online advertising and intellectual property rights (SWD(2020)0167/2),

 having regard to Rules 47 and 54 of its Rules of Procedure,

 having regard to the opinion of the Committee on Culture and Education,

 having regard to the report of the Committee on Legal Affairs (A9-0139/2021),

A. whereas sport plays a key role in the social, cultural and economic prosperity of the Union and promotes common values of solidarity, diversity and social inclusion, making significant contributions to the economy and to social development;

B.  whereas, under Article 165 TFEU, the Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport; whereas  sport’s contribution to achieving the Union’s overall objectives such as environmental protection, digitalisation and inclusiveness should also be taken into account, and the Union should aim at further developing and preserving the European dimension of sport in the digital environment;

C. whereas, in addition, sport promotes and instils values such as mutual respect and understanding, solidarity, equality, inclusiveness, diversity, fairness, cooperation, and civic engagement, while substantially contributing to educational and cultural values, and can be considered as a cultural and social necessity; whereas it is essential that these values are encouraged by sports events organisers, broadcasters, online intermediaries, national authorities and other stakeholders in the sport sector; whereas the Union's sport policy must support the aims and objectives of both professional and amateur sports and can help address transnational challenges;

D.  whereas sport serves as a vector for integration; whereas sports stakeholders, municipalities and the sports community should cooperate to move towards a more sustainable and inclusive sports sector by facilitating participation in sports events for all members of the public, especially people with fewer opportunities, and regardless of their age, gender, disability or ethnic origin;

E.  whereas fan culture is an indispensable part of the sports experience and not just a backdrop for marketing a product;

F.  whereas sport related sectors represent 2,12% of Union GDP and 2,72% of employment within the Union; whereas sport events have a significant territorial impact in terms of participation and the economy;

G. whereas grassroots sport is the basis for the professional level, as small sports clubs constitute the backbone of European grassroots sport and make a significant contribution to the development of young athletes and mostly work on a voluntary basis; whereas 35 million amateurs contribute to the development of mass-participation sport and the dissemination of the values of sport;

H.  whereas the development of the digital environment and of new technologies has made it easier for all fans to access sport 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 sport 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; ;

I. whereas the protection of intellectual property rights is a fundamental right enshrined in the Charter of Fundamental Rights; whereas the meaning and scope of the fundamental rights enshrined in the Charter are to be determined in accordance with the corresponding case law of the European Court of Human Rights;

J. whereas fan culture, which is built upon the freedom to share and live the sports experience both in real time and preceding or following live sports events, is an essential element of the role that sport plays in European society;

K. whereas the illegal transmission of sports events and the dissemination of illegal content online not only cause significant economic harm to the sports sector, resulting in losses in subscription and advertising revenue, but are also harmful for end users, such as fans and consumers, due for example to such end users being exposed to personal data theft, malware or other online related forms of harm or detriment; whereas illegal broadcasts of sports events is often part of the growing activities of criminal organisations; whereas online piracy not only affects live sports broadcasts available through subscription services, but also free-to-air broadcasts of sports events;

L. whereas the COVID-19 pandemic and the restrictions of access to sports events have led to a drop in the sale of tickets for sports events and at the same time created opportunities for developing subscriptions to sports channels, and for enlarging online and television broadcast audiences, as well as for illegal streaming of sport event;

M.  whereas, unlike other sectors, most of the value of a sport event broadcast lies in the fact that it is live and most of that value is lost when the event ends; whereas illegal streaming of sports event broadcasts is at its most harmful in the first thirty minutes of its appearance online; whereas, consequently and only in this context, an immediate reaction is needed to put an end to the illegal transmission online of sports events;

N. whereas action should focus on where illegal content streams originate, namely illegal website enablers, and not on individual users, such as fans and consumers, who unwillingly and unknowingly are involved in illegal streaming;

O. whereas, in recent years, new multimedia channels have proliferated for the illegal distribution of live sports events, among which the illicit use of Internet Protocol Television (IPTV) stands out due to its increasing volume;

P.  whereas 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, in order to highlight incidents of, for example, hate speech and racism taking place; whereas such illegal transmissions are also to be distinguished 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 Audiovisual Media Services Directive; whereas 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;

Q. whereas certain major sports events are of general public interest and access to real-time information about them should therefore be guaranteed for all citizens and not be subject to undue or illegal restrictions; whereas this also concerns the journalists and news reporters who may provide such real-time information; whereas Member States should support the broadcasting of major sports events free-to-air, as a form of popular culture that plays an important part in the lives of citizens;

R. whereas the number of rightholders, intermediaries and other service providers which develop software tools able to identify illegal broadcasting of live sports events with a minimum margin of error is steadily increasing; whereas, at the same time, the reliability of notifications issued by those rightholders, intermediaries and other service providers depends on the accuracy and technical quality of the software tools they deploy to identify illegal broadcasting of live sports events;S.  whereas those rightholders, intermediaries and other service providers whose software tools are able to effectively and reliably identify illegal broadcasting of live sports events should be considered as “certified trusted flaggers”; whereas the fulfilment of quality and accuracy standards should be required in order to be legally considered a certified trusted flagger; whereas a certificate based on common Union requirements would be the preferred option to ensure a coherent and effective recognition of trusted flaggers;

T. whereas research and innovation to develop improved software tools to identify and report illegal broadcasting of live sports events should be promoted by the Union and the Member States;

U.  whereas sports events  are not the subject matter of copyright protection under Union law, but as such they have a unique and, to that extent, original character which can transform them into subject-matter that is worthy of protection comparable to that of copyright works; whereas there is no harmonised protection in Union law for sports events organisers as such; whereas, however, specific protection for sports events organisers is provided for in the legislation of some Member States, generating legal uncertainty and fragmentation of the Union regulatory framework;

V.  whereas Union law provides for a general framework for notice and action mechanisms enabling the removal of, or disabling of access to, illegal information stored by intermediaries; whereas Union law provides for civil enforcement measures that judicial or administrative authorities can take under certain conditions to prevent or to block intellectual property rights infringements;

W.  whereas, however, the current legal framework does not allow for the necessary immediate action needed to remedy the illegal broadcast of live sports events; whereas, moreover, some Member States have adopted rules on notice and action mechanisms that are not harmonised at Union level;

Introduction and general remarks

1. Requests that the Commission, after carrying out the necessary impact assessment, submit without undue delay, on the basis of Article 114 TFEU, a proposal for legislative  acts, following the recommendations set out in the Annex hereto;

2. Considers that sport makes a significant contribution to social inclusion, education and training, job creation, employability and public health in the Union; considers, also, that the revenues stemming from the organisation of sport events should contribute to a larger extent to the financing of sporting activities that are beneficial to society, thus reflecting the social importance of sport; notes that in many European countries money allocated to grassroots sport depends directly on revenue from sports broadcasting rights; highlights, therefore, the need for reinforced financial solidarity in the sports ecosystem and notes that a part of such revenue should be directed towards the development of grassroots sports, para-sports and sports that get less media coverage;

3. Recalls the statement of the Commission included as an Annex to the Resolution of the European Parliament on Copyright in the Digital Single Market adopted in March 2019, according to which “the Commission will assess the challenges of sport event organisers in the digital environment, in particular issues related to the illegal online transmissions of sport broadcasts”[10];

Sports events and intellectual property rights

4.  Notes that sports events as such cannot be subject to copyright protection; recalls that Union law, unlike the law in some Member States, does not provide for a specific right for sports events organisers; recalls that some Member States grant the possibility of the so-called “house right”  protection, based on the contractual relationship, and Union law grants a neighbouring right to the producers of the first fixations of films, in respect of the original and copies of their films; acknowledges that legal protection, including intellectual property rights, is important for sports events organisers, in particular in relation to the licensing of broadcasting rights for the sports events they organise, as the exploitation of those rights represents a relevant source of income, followed by sponsorship, advertising and merchandising;

5. Stresses that infringement of broadcasting rights in sport threatens its long-term funding;

Online piracy of live sports event broadcasts

6.  Considers that tackling online piracy of sports events that are broadcast “live” and  the economic value of which lies in the “live” nature of the broadcast is the main challenge that sports events organisers face  requiring a legislative response at Union level;

7. Observes that the illegal streaming of sports events is a growing phenomenon that is harmful to the sports ecosystem and to end users, who could be exposed to different forms of harm such as identity theft, malware (e.g. coming from free apps, or theft of credit card authentication and of other personal data), or other online-related forms of harm or detriment;

8. Notes that sports events organisers invest significant financial, technical and human resources to address online piracy and engage with service providers;

9. Considers, at the same time, that sports events organisers should contribute to a European sports model that contributes to the development of sport and is in line with social and educational objectives;

10.  Underlines that the legal provision of sports content should be better promoted in the Union and calls on the Commission to take measures that make it easier for consumers to find legal means of accessing sports content online; calls on the Commission to regularly update the list of such means of access on Agorateka.eu and to ensure that the platform is further developed; stresses that liability for the illegal broadcasting of sports events rests with the providers of streams and platforms and does not lie with fans or consumers, who often unintentionally come across illegal online content and should be further informed on the legal options available;

Need for effective enforcement of rights

11.  Stresses that, given the specific nature of live sports event broadcasts and the fact that their value is mainly limited to the duration of the sports event in question, enforcement procedures need to be as swift as possible; considers, however, that the current legal framework for injunctions and for notice and take down mechanisms does not always sufficiently guarantee an effective and timely enforcement of rights to remedy the illegal broadcast of live sports events; considers, therefore, that concrete measures that are specific to live sports event broadcasts should be adopted as soon as possible to adapt the current legal framework to, and render it suited for, these specific challenges;

12. Calls for the removal of, or the disabling of access to, infringing live sport broadcasts by online intermediaries to be immediate or as fast as possible, and in any event no later than within 30 minutes of the receipt of the notification from rightholders or from a certified trusted flagger regarding the existence of such illegal broadcast; underlines that in the context of the current resolution, “immediate” is intended to be understood as immediately or as fast as possible and in any event no later than within 30 minutes of the receipt of notification from rightholders or from a certified trusted flagger;

13.  Is of the view that real-time take down should be the objective pursued in cases of infringing live sports event broadcasts, provided that there  is no doubt about the ownership of the right concerned and the fact that the transmission of the sports event in question was not authorised; stresses, nevertheless, that any such measures must respect the general legal principle of not imposing a general obligation to monitor;

Cross-border enforcement of rights

14.  Underlines, also, that the general framework provided for by Union law is not applied uniformly at national level and that civil procedure and notice and take down mechanisms differ from one Member State to another; is of the view that enforcement tools in the cross-border context  lack efficiency; calls for further harmonisation  of the procedures and remedies in the Union to address, in the context of the Digital Services Act package and other potential legislative proposals the specific nature of live sports event broadcasts;

15. Stresses that national enforcement agencies and authorities are struggling with challenges such as a lack of resources and trained staff ; underlines the importance of close collaboration and exchange of best practices between relevant authorities at Union level, national authorities and relevant actors, to improve the overall legal infrastructure throughout the Union;

Notice and action procedures

16.  Recalls that the Directive on electronic commerce provides that certain online service providers are to act expeditiously to remove or disable access to illegal information they store, upon obtaining actual knowledge or awareness thereof, through notices submitted to them; maintains that the notice and action procedure should form the basis for measures addressing illegal content in the Union; considers, however, that the current notice and take down procedure does not allow for swift enforcement in a way that provides effective remedies, considering the specific characteristic of “live” sports events; underlines that any provision to be adopted, governing a specific subject matter, must be in line with the general framework set by the relevant Union law;

17.  Recalls Parliament´s resolution on a Digital Services Act (2020/2019 (INL)), which requests the Commission to ensure that content hosting platforms act expeditiously to make unavailable or remove content which is manifestly illegal; is of the view that a mechanism involving certified trusted flaggers, through which an illegal broadcast of a live sports event notified by a certified trusted flagger is immediately removed or access to such a broadcast is disabled, without prejudice to the implementation of a complaint and redress mechanism, should be set up;

18. Stresses that sport content is often technically processed, which leaves no room for doubt about who has the right to broadcast it  online, and that sports event organisers - as rightholders - know all their official licensees, which allows for unequivocal detection of illegal streaming services;

19. Insists that providers of streaming servers and streaming platforms should implement specific take down tools or measures, in order to remove or disable access to illegal live sports event broadcasts available on their services;

Blocking injunctions

20. Notes that injunction procedures are relatively long and usually come into effect after the broadcast has ended; points to the existence of practices developed at national level, such as live injunctions and dynamic injunctions, that have proved to be a means of tackling piracy of sports events broadcasts more efficiently; calls on the Commission to assess the impact and appropriateness of introducing injunction procedures aimed at allowing real-time disabling of access to, or removal of, illegal online live sports event content, based on the model of “live” blocking orders and “dynamic injunctions”;

21. Insists that injunction procedures to remove or disable access to illegal sports events broadcast online, irrespective of the manner of their implementation, must ensure that the measures strictly target illegal content only and do not lead to the arbitrary and excessive blocking of legal content;

Safeguards

22.  Acknowledges that real-time blocking could affect fundamental rights if it exceptionally rendered legal content inaccessible; emphasises, therefore, the need for safeguards to ensure that the legal framework strikes the right balance between the need for efficiency of enforcement measures and the need to protect third party rights; considers, in that regard, that the enforcement measures for the protection of live content should be effective and proportionate, in particular for small businesses, SMEs and start-ups, and should include providing access to effective judicial remedies, appropriate information about the alleged infringement for the affected service providers and internet users, and adequate safeguards in relation to the protection of fundamental rights and of personal data;

Neighbouring right and sui generis right for sports events organisers

23.  Notes that Union law does not provide for a neighbouring right to copyright for sport event’s organisers but that some Members States have introduced specific rights for sports events organisers in their legislation, including a new “neighbouring right” to copyright;

24.  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;

Other measures

25.  Calls for cooperation between Member States authorities, rightholders and intermediaries to be reinforced; further calls on the Commission, within its remit, to support Member States in their endeavours to improve existing infrastructure and measures;

Final aspects

26. Considers that the requested proposal does not have financial implications;

27. Instructs its President to forward this resolution and the accompanying recommendations to the Commission and the Council.


 

ANNEX TO THE MOTION FOR A RESOLUTION: RECOMMENDATIONS AS TO THE CONTENT OF THE PROPOSAL REQUESTED

A. PRINCIPLES AND AIMS OF THE PROPOSAL REQUESTED

In order to provide appropriate and effective legal protection of rights regarding live sports events, the current Union legal framework should be amended. This shall be achieved taking into account the following aims and principles:

 to improve and make the current Union legal framework on enforcement of intellectual property rights with regard to live sports events more effective, considering its specific nature and in particular the short-term value of such events, on the basis of  best practices in the Member States;

 to introduce a Union system establishing common criteria for the certification of “trusted flaggers”;

 to clarify the existing legislation and adopt concrete measures to ensure the immediate removal of, or disabling of access to, online illegal live sports events content, including online illegal live sports events content notified by a certified trusted flagger to tackle efficiently illegal broadcasts of live sports events; to understand “immediate” as meaning immediately or as fast as possible and in any event no later than within 30 minutes of the receipt of notification from rightholders or from certified trusted flaggers;

 to emphasise that intermediaries should put in place effective Know-Your-Business-Customer obligations to prevent their services from being abused to facilitate the illegal streaming of sports events; to that end, calls on the Commission to propose such obligations within the upcoming Digital Services Act;

 to further harmonise, where appropriate, procedures and remedies in the Union to improve and strengthen the efficiency of enforcement measures, including in the cross-border context, without prejudice to the general Union framework;

 to evaluate existing enforcement measures with a view to improving them and enabling the immediate take down of illegal live sport content, including illegal live sport content notified by a certified trusted flagger;

 to harmonise the use of swift and adaptable blocking procedures in the event of repeated already established infringements allowing for the immediate removal of, or the disabling of access to, illegal online live sport content, including when that illegal content is notified by certified trusted flaggers, based on the model of “live” blocking orders and “dynamic injunctions”;

 to ensure that the measures to be proposed take into account the scope, magnitude and recurrence of the infringement and to  target illegal transmissions, excluding the recording and posting of illegal amateur footage of sports events;

 to ensure that the measures to be proposed are proportionate and keep the right balance between the need for the enforcement measures to be efficient and the need to protect relevant third party rights, including those of service providers, fans and consumers;

 to clarify that the liability for the illegal broadcasting of sports events does not lie with fans and consumers;

 to complement the adaptation of the legislative framework with non-legislative measures, including reinforced cooperation between Member States’ authorities, rightholders and intermediaries;

B. ACTION TO PROPOSE

Without prejudice to the expected rules to be set out in a relevant Union law establishing general rules on tackling illegal content online, specific provisions regarding the rights of sports events organisers should be introduced in Union legislation, aimed, in particular, at:

 clarifying the concept behind the phrase  “acts expeditiously”  set out in Article 14 of the  Directive on electronic commerce in relation to an online intermediary, such that “expeditiously” is considered to mean  immediately or as fast as possible and in any event no later than within 30 minutes of the receipt of the notification from rightholders or from a certified trusted flagger;

 establishing a common Union quality and technical reliability standard for software tools deployed by rightholders, 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”;

 provide for a legal presumption that notifications issued by certified trusted flaggers are deemed to be accurate and reliable, and as a consequence, illegal online live sports events content notified by a certified trusted flagger should be immediately removed or access to it disabled , without prejudice to the implementation of complaint and redress mechanisms;

 allowing for immediate take down procedures targeting illegal live sports events content, provided that there is no doubt about the ownership of the right concerned and that the transmission was not authorised;

 ensuring that the measures to be taken by intermediaries are effective, justified, proportionate, adequate, taking into account the seriousness and the scale of the infringement, 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;

 taking measures that make it easier to find legal means of accessing sports content, including by regularly updating the list of providers of  such means on Agorateka.eu and ensuring that viewers are informed of such legal means and how to use  such means to access content when the blocking measures are enforced;

 providing and actively supporting enforcement solutions, such as private agreements among stakeholders; in this respect, the Commission should report on and assess the appropriateness and impact of creating an obligation for online content providers to perform immediate take downs to remove or disable access to illegal sports events broadcasts available on their services;

Directive 2004/48/EC (the Enforcement Directive) should be amended in order to:

 introduce the possibility for the relevant judicial or administrative authority to issue injunctions requesting the real-time disabling of access to, or removal of, illegal online live sport events content;

 allow  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;  such injunctions should be temporary;

 harmonise 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;

 specify that the removal of the illegal content should take place immediately, or as fast as possible and in any event no later than within 30 minutes of the receipt of the notification from rightholders or from a certified trusted flagger, provided that the illegality of the broadcast has been notified by a certified trusted flagger or, in case of unambiguity, by the rightholder himself; a strong indication should be given to  the rightholders or certified trusted flaggers to prevent any removal of legal content; to that end, disabling access to or removing illegal content should in principle not necessitate blocking access to a server that hosts legal services and content;

 reinforce 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; the Commission should assess the added-value of appointing an independent administrative authority in each Member State that would have a role to play in the enforcement system, especially in the case of swift enforcement, such as for online piracy of live sport content;

 reinforce the cooperation between intermediaries and rightholders, including by promoting the conclusion of Memoranda of Understanding that could provide for a specific notice and action procedure.



 

EXPLANATORY STATEMENT

Introduction

Sport plays an important role in society. The exploitation of sport events could participate in the financing of other activities that benefit to all and include for example tax income for States. Today, the most important part of rightowners’ revenues (80%) comes from broadcast rights, which suffers from illegal exploitation of sport events’broadcast.

The problem of digital piracy of sport events’ broadcast is constantly evolving in terms of scale and technology involved, ways and tactics used by infringers to capture legal signal and modes of transmission of the information and signals. There are different sources and forms of piracy (downloading, streaming, IPTV[11]) which lead to different possible solutions. For example, in-venue footage and live streaming by individuals in the audience is different from those taken from live TV broadcast communicated online (in the former example broadcasting right is not infringed, thus IPR enforcement rules do not apply and enforcement of contract law could be favoured).

This is a complex issue and your rapporteur would like to focus on the main problem which comes from dedicated professional websites with a business model funded on fees or on advertising that give access to illegal sport content - an activity that is mainly fulfilled by crime organisations, and should be differentiated from fans sharing photos. The fact that free broadcasts are also highly touched by piracy indicates that piracy of sport events’ broadcast is not an altruistic activity and might not be only the response to the high subscription fees to pay for watching sport events. It is an illegal business, with different ways of generating revenues (direct - e.g. subscription fees - or indirect e.g. advertising, spreading malware) and run to make large profits from the exploitation of rights that they have not acquired legally and that will not be reinvested. Your rapporteur does not want to target individuals - fans - who may not even realize they are watching illegal content, but those professional pirates who undertake infringement at large scale.

Also, as pointed out in a recent study[12] and by Europol, the risk for consumers is real for consumers: exposition to free app malware, steal of credential credit card, etc.

Considering the above, your rapporteur considers that unauthorised distribution of sport event broadcast should be tackled.

In this context, it is necessary to understand what are the main challenges, to determine whether there are already legal tools available to tackle the problem, and what are the shortcomings in the legal framework that need to be addressed, and finally what are the possible solutions.

Problem at stake

The main problem for sport events’ organisers concerns piracy of sport events that are broadcast “live” and which economic value lies in the “live” broadcast. This is the case for example of football matches, boxing or cycling race. Unlike other content, such as films, series or books (and possibly some sport events such as ice dance competitions based on choreography which is of interest and that still has value years after the event ends) the main harm is caused during the event and the window for relevant action against piracy is short and is, basically, the duration of the event. Given the specificity of “live” sport event broadcast, the relevant remedy should be the immediate termination of the unauthorised broadcast, before it has lost its value.

Usually the problem with the current enforcement measures is that enforcement arrive too late:  civil enforcement measures, such as notice and take down mechanisms and injunctions are relatively long and the actual removal of or the disabling access to content arrives too late.

Your rapporteur considers that a solution should be found to enable the immediate termination of the infringement; however, it should be emphasised that this solution should remain limited to live sport events broadcast and only justified by their specific character mentioned above and should be accompanied by adequate and effective safeguards.

Existing Union legal framework

Availability of rights to be enforced

Sport event per se does not qualify for copyright protection as it is not a “work” qualified for protection under copyright law[13]; however, the ECJ ruled in Premier League case[14] that “[n]one 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.” In other words, Member States can adopt national rules to offer legal protection to sport events comparable to copyright. Some Member states have introduced specific rules. Italy has introduced in its legislation a new “neighbouring right” to copyright which provides protection of sport audio-visual rights that sport events’ organisers can benefit from. In France, a special protection was established in the French Sports Code[15] (outside the copyright legislation) that provides sport events’ organisers with an “exploitation right” of the events they organise. This sui generis right gives a monopoly over the right to broadcast their event. This specific right can be used for direct actions against the infringing website. However, the question of the efficiency of actions based on the ordinary law is raised. Portugal provides for special rule protecting the organisers of sport events.

In addition, while sport event in itself cannot be protected under any IPR[16], the recording of a sport event or its broadcast is protectable under Union law. Provided that the recording meets the level of originality (which seems to usually be the case[17]), the audio-visual recording of sport events is protected by copyright. A neighbouring is granted to producers of audio-visual works for the first fixation of their audio-visual works and to the broadcasters on the broadcast signal[18]. Sport events’ organisers, if they act as producers of the audio-visual coverage of the event or as broadcaster or if they acquire the right by contract will hold the right. A major source of revenue to sport events’organisers comes from the sale of broadcasting rights.

Therefore, sport events’organisers have rights to be enforced on which they can initiate an action against the unauthorised transmission of the sport event they organise, including “live” events. Legal instruments of protection exist and the legal protection of sport events’ organisers is sufficient and does not request the creation of a new right.

Enforcement of rights is not effective for “live”events

Union legislation already provides for a general framework allowing enforcement measures to be used by rightholders, including out of court mechanisms. The Directive on electronic commerce[19] provides an horizontal tool under which certain online service providers are to act expeditiously to remove or disable access to illegal information they store upon notices submitted to them (“notice and take down” mechanism)[20]; in the specific case of intellectual property rights infringements, Article 11 of the 2004 Directive on the enforcement of IPR (IPRED)[21] provides that competent judicial authorities can issue injunctions prohibiting the continuation of an infringement on the basis of a judicial decision finding an infringement against direct infringers but also against intermediaries whose services are being used by a third party to infringe rights. Article 9 IPRED provides for interlocutory injunctions to prevent imminent infringement or forbid the continuation of alleged infringement. Article 8 of the Infosoc Directive[22] provides for injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Despite the existence of this framework, the notice and take down mechanisms and injunctions mechanisms have limits, especially when it comes to “live” events. Notice and actions procedures can be rendered ineffective by the infringing websites by delaying their response to the take down notices. Injunction mechanisms, given the length of the procedure, are not compatible with the timely remedy needed in the case of live sport.

Solutions developed at national level

In the UK and Ireland, the practice of “live blocking orders” has developed, which is of immediate application but limited in time (for the duration of the live sport event). It does not target individual websites but servers from which the illegal streaming of content comes covering several IP addresses. Focussing on the point of distribution of the illegal streaming, i.e. at the streaming servers makes the enforcement procedure more effective but may not be proportionate and may be prejudicial to third party rights as any blocking of a server would potentially block also legal content hosted in the server.

In other Member States, administrative proceedings and voluntary measures have developed. Italy and Greece adopted an administrative blocking system. In Portugal, a voluntary agreement between stakeholders and involving the administration allow for real-time blocking of streaming. In Denmark, a Code of Conduct for handlings decisions on blocking access to services infringing intellectual property rights and concluded between the Telecom Industry Association and the Danish Rights Alliance revised in May 2020 aims to implement blocking in a simplified way.

The Commission guidelines on IPRED[23] recognises the admissibility of injunctions specifically aimed at preventing mirroring, the dynamic (blocking) injunctions. A number of dynamic injunctions have already been issued in several Member States, although with different scope and target. The possibility to use such injunctions in all Member States should be reinforced and harmonised.

The set up of measures to ensure immediate action and the immediate removal of content must be accompanied by adequate safeguards including transparency requirements.

Conclusion

Your Rapporteur considers that piracy of live sport events content is a real problem with significant consequences that will not decrease in the future and that should be tackled. Your rapporteur is of the view that the current legal framework does not sufficiently allow for the effective protection of “live” sport events. He is however convinced that the solution does not lie in the creation of a new right for sport events’ organisers but in the improvement of the enforcement of the existing rights in order to get an effective and full enforcement thereof.

Consequently, your rapporteur is of the view that Parliament should call the Commission to clarify and adapt the existing legislation to enable an immediate enforcement of rights for live sport events, including the possibility to issue injunctions requesting the real-time blocking of access to or removal of unauthorised online live sport content. Also, he proposes to call for measures supporting the development of voluntary agreements between stakeholders and the cooperation between national authorities.


 

 

 

OPINION OF THE COMMITTEE ON CULTURE AND EDUCATION (28.1.2021)

<CommissionInt>for the Committee on Legal Affairs</CommissionInt>


<Titre> with recommendations to the Commission on the challenges of sports events’ organisers in the digital environment</Titre>

<DocRef>(2020/2073(INL))</DocRef>

Rapporteur for opinion (*): <Depute>Tomasz Frankowski</Depute>

(Initiative – Rule 47 of the Rules of Procedure)

(*) Associated committee (Rule 57 RoP)

 

 

 

SUGGESTIONS

The Committee on Culture and Education calls on the Committee on Legal Affairs, as the committee responsible:

 to incorporate the following suggestions into its motion for a resolution:

1. Recalls that sport makes significant contributions to social inclusion, education and training, job creation, employability and public health in the Union[24];

2. Recalls that, under Article 165 of the Treaty on the Functioning of the European Union, the Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport and its contribution to achieving the Union’s overall objectives such as environmental protection, digitalisation and inclusiveness, and should aim at further developing and preserving the European dimension  of sport in the digital environment;

3. Recalls also that sport promotes and teaches values such as mutual respect and understanding, solidarity, equality, inclusiveness, diversity, fairness, cooperation, and civic engagement, while substantially contributing to educational and cultural values, and can be considered as a cultural and social necessity; stresses that it is essential that these values are encouraged by sport events’ organisers, broadcasters, online intermediaries, national authorities and other stakeholders in the sport sector; recalls that the Union's sport policy must support the aims and objectives of both professional and amateur sports and can help address transnational challenges;

4. Emphasises that sport knows no borders and unites people from different socioeconomic backgrounds and serves as a vector for integration; calls on sports stakeholders, municipalities and the sport community to cooperate towards a more sustainable and inclusive sports sector by facilitating participation in sports events for all sectors of the public, especially people with fewer opportunities, and regardless of their age, gender, disability or ethnic origin; recalls the importance of equal opportunities for women to participate and being involved at decision-making level;

5. Emphasizes that fan culture is an indispensable part of the sports experience and not just a backdrop for marketing a product;

6. Acknowledges that sport related sectors represent 2,12% of Union GDP and 2,72% of employment within the Union; acknowledges that other sports related sectors also contribute to the Union GDP[25]; emphasises that grassroots sport is the basis for the professional level as small sport clubs constitute the backbone of European grassroots sport and make a significant contribution to the development of young athletes and mostly work on a voluntary basis; notes that 35 million amateurs contribute to the development of mass-participation sport and the dissemination of sport values; highlights the significant territorial impact of sport events, in terms of participation and in economic terms, as they boost the economy of the areas hosting them, attracting many tourists and leveraging investment by sponsors and companies in the localities concerned;

7. Considers that broadcasting rights to live sport events constitute the important source of income followed by sponsorship, advertising and merchandising for sport in the Union and that such events represent an important source of content for media operators such as broadcasters and OTT players; highlights the need for reinforced financial solidarity in the sport ecosystem and notes that a part of such income should be directed towards the development of grassroots sports, given that in many European countries redistribution to grassroots sport depends directly on revenue from sports broadcasting rights; calls on the Commission and Member States to promote such a redistribution to ensure the sustainability of funding in the digital environment, thus guaranteeing established financing of sport activities while at the same time preserving the autonomy of sport;

8. Considers that digital transformation accelerates the commercialisation of sport but also brings many new opportunities to athletes, sports organisers, and the sport sector as a whole, including paralympic sport; underlines that it enhances the sport experience for consumers, increase potential exposure and enlarge the audiences and their engagement; calls on stakeholders in the sport sector, broadcasters, online intermediaries, and national, regional and local authorities to continue collaborating and exchanging information on good practices in order to address the challenges, including online piracy of sport broadcasts and to seize the opportunities offered by the digital environment, in particular for sports traditionally not broadcasted, getting more visibility;

9. Notes that the main challenge faced by sport events’ organisers in the digital environment is the online piracy of live broadcasts of the events they organise;

10. Recalls that illegal streaming is done from a complex, underground, multinational network that is expanding by the day; notes that the number of visits to sports piracy websites was 362.7 million in January 2019 alone; draws attention to statistics showing that sports fans use both legal and illegal means in parallel to access sport content[26]; stresses that, in addition to broader anti-piracy measures, a more nuanced and targeted approach is needed to address the demands of consumers with different subscriptions and payment models; recalls that end users accessing unlicensed stream content may be exposing themselves to other forms of harm, including identity theft and other online related intrusions; welcomes the Commission’s Memorandum of Understanding (MoU) on online advertising and IPR, a voluntary agreement which aims at minimising advertisement revenues on websites and mobile applications that infringe copyright or disseminate counterfeit goods;

11. Recalls that the upsurge of unlicensed live transmission of sports events is detrimental to both professional and grassroots sports and threatens the organisation and sustainability of sports events as well the financial stability of the whole sport sector;

12. Notes that sport events’ organisers invest significant financial, technical and human resources to address online piracy, engage with service providers, and rely heavily on the large digital infrastructure for ticketing systems, e-commerce solutions, data and statistical analytics; emphasises that infringements of media rights in sport threaten its long-term funding;

13. Emphasizes that the protection of intellectual property rights is a fundamental right enshrined in the Charter of Fundamental Rights; underlines that the effective enforcement of intellectual property rights on sport broadcasts is essential for the sustainable funding of sport at all levels and for ensuring a level playing field; recalls that measures aimed at protecting broadcast rights against illegal use and piracy must not affect press freedom, the news media’s ability to inform citizens or to access information, freedom of expression and consumer privacy online;

14. Stresses that COVID-19 has had a devastating impact on the entire sports sector and related sectors; Underlines in particular the difficulties faced by the grassroots sport and small clubs in dealing with the current pandemic and calls on the Member States to actively support these types of activities thorough all relevant funding and initiatives at EU and national level; highlights that in the current context new means of organising sport events and physical education and activities should be envisaged, by making use of the digital technologies available;

15. Underlines that there is a general public interest in major sporting events such as the FIFA World Cup or the Olympic Games and that access to real-time information about these events must be guaranteed for all citizens; notes that in this context the access of radio journalists and news reporters to sport events also plays an important role, since the consumers are informed about national and international competitions through reports; calls on the Member States to support the broadcasting of major sport events on free-to-air as a form of popular culture that plays an important part in the lives of citizens;

16. Underlines that online piracy of live sports broadcasts happens irrespective of whether the sport event is available on free to air television or through subscription services;

17. Underlines that the legal offers of sports content should be better promoted in the Union and calls on the Commission to take measures that make it easier to find legal offers of sports content; calls on the Commission to regularly update the list of such offers on Agorateka.eu and to ensure that the platform is further developed; stresses that the responsibility for illegal online activities rests with the providers of streams and platforms, not the consumers, who often unintentionally come across illegal online content and should be further informed on the legal options available;

18. Recalls the statement of the Commission included as an Annex to the Resolution of the European Parliament on Copyright in the Digital Single Market adopted in March 2019 according to which “the Commission will assess the challenges of sport event organisers in the digital environment, in particular issues related to the illegal online transmissions of sport broadcasts”[27];

19. Calls on the Commission to present without delay a legislative proposal to address the problem of online piracy of sports broadcasts, because there is no single legal framework in the Member States; highlights that any legislative proposal should be accompanied by an impact assessment; stresses the need for a Union-wide Regulation to provide a comprehensive response to illegal broadcasting of sport events by clarifying the responsibility of the platforms that host such illegal broadcasts, which should also include the relevant provisions in the Digital Services Act;

20. Stresses that sport content is usually distributed on an exclusive basis and very often watermarked and/or fingerprinted which means that there is no doubt about who has the right to broadcast that sports content online, and that notices sent by sports events organisers to intermediaries regarding illegal streams or clips are almost never challenged;

21. Emphasises that intermediaries should put in place effective Know Your Business Customer obligations to prevent their services from being abused to facilitate the illegal streaming of sports events; to that end, calls on the Commission to propose such obligations within the upcoming Digital Services Act;

22. Calls for the removal of infringing live sport broadcasts from online intermediaries to be immediate, or as fast as possible within 15 to 30 minutes, after the receipt of notification from rightholders in order to be effective; calls for a robust and effective ‘notice-and-action’ mechanism and for the respect of the no general obligation to monitor; calls on online video streaming services to take additional voluntary measures to remove or block access to infringing live sport broadcasts; considers that flagging and reporting systems as well as complaint and redress mechanisms should be implemented to prevent abuses or unfair competition practices;

23. Insists that providers of streaming servers and streaming platforms should implement specific take down tools or measures in order to remove or disable access to illegal live sports broadcasts available on their services;

24. Considers that Member States and stakeholders should continue promoting among consumers a responsible online consumption of sports content, while respecting the integrity of the internal market and competition rules; notes that action should involve leagues, clubs and the education sector in awareness-raising campaigns on the impact of piracy on the sport sector.

 


INFORMATION ON ADOPTION IN COMMITTEE ASKED FOR OPINION

Date adopted

26.1.2021

 

 

 

Result of final vote

+:

–:

0:

26

3

0

Members present for the final vote

Asim Ademov, Isabella Adinolfi, Andrea Bocskor, Ilana Cicurel, Gilbert Collard, Gianantonio Da Re, Laurence Farreng, Tomasz Frankowski, Alexis Georgoulis, Hannes Heide, Irena Joveva, Petra Kammerevert, Niyazi Kizilyürek, Dace Melbārde, Victor Negrescu, Marcos Ros Sempere, Domènec Ruiz Devesa, Andrey Slabakov, Massimiliano Smeriglio, Michaela Šojdrová, Sabine Verheyen, Salima Yenbou, Theodoros Zagorakis, Milan Zver

Substitutes present for the final vote

Ibán García Del Blanco, Marcel Kolaja, Elżbieta Kruk, Radka Maxová, Diana Riba i Giner

 


 

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

26

+

ECR

Elżbieta Kruk, Dace Melbārde, Andrey Slabakov

ID

Gilbert Collard, Gianantonio Da Re

NI

Isabella Adinolfi

PPE

Asim Ademov, Andrea Bocskor, Tomasz Frankowski, Michaela Šojdrová, Sabine Verheyen, Theodoros Zagorakis, Milan Zver

Renew

Ilana Cicurel, Laurence Farreng, Irena Joveva, Radka Maxová

S&D

Ibán García Del Blanco, Hannes Heide, Petra Kammerevert, Victor Negrescu, Marcos Ros Sempere, Domènec Ruiz Devesa, Massimiliano Smeriglio

The Left

Alexis Georgoulis, Niyazi Kizilyürek

 

3

-

Verts/ALE

Marcel Kolaja, Diana Riba i Giner, Salima Yenbou

 

0

0

 

 

 

Key to symbols:

+ : in favour

- : against

0 : abstention

 

 

 


INFORMATION ON ADOPTION IN COMMITTEE RESPONSIBLE

Date adopted

13.4.2021

 

 

 

Result of final vote

+:

–:

0:

18

6

0

Members present for the final vote

Pascal Arimont, Gunnar Beck, Geoffroy Didier, Pascal Durand, Angel Dzhambazki, Ibán García Del Blanco, Esteban González Pons, Gilles Lebreton, Karen Melchior, Jiří Pospíšil, Franco Roberti, Marcos Ros Sempere, Stéphane Séjourné, Raffaele Stancanelli, Marie Toussaint, Adrián Vázquez Lázara, Axel Voss, Marion Walsmann, Tiemo Wölken, Lara Wolters, Javier Zarzalejos

Substitutes present for the final vote

Patrick Breyer, Daniel Buda, Caterina Chinnici, Heidi Hautala, Ilhan Kyuchyuk, Emmanuel Maurel, Sabrina Pignedoli, Luisa Regimenti, Yana Toom

 


 

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

18

+

PPE

Pascal Arimont, Geoffroy Didier, Esteban González Pons, Jiří Pospíšil, Axel Voss, Marion Walsmann, Javier Zarzalejos

S&D

Ibán García Del Blanco, Franco Roberti, Marcos Ros Sempere, Lara Wolters

Renew

Pascal Durand, Stéphane Séjourné, Adrián Vázquez Lázara

ID

Gilles Lebreton, Luisa Regimenti

ECR

Angel Dzhambazki, Raffaele Stancanelli

 

6

-

S&D

Tiemo Wölken

Renew

Karen Melchior

ID

Gunnar Beck

Verts/ALE

Patrick Breyer, Heidi Hautala

The Left

Emmanuel Maurel

 

0

0

 

 

 

Key to symbols:

+ : in favour

- : against

0 : abstention

 

 

[1]   OJ L 130, 17.5.2019, p. 92.

[3]  OJ L 130, 17.5.2019, p. 82.

[4]  OJ L 168, 30.6.2017, p. 1.

[5]  OJ L 157, 30.4.2004, p. 45

[6]  OJ L 178, 17.7.2000, p. 1.

[7]  OJ L 167, 22.6.2001, p. 10.

[8]  OJ L 095, 15.4.2010, p. 1.

[9]  OJ L 63, 6.3.2018, p. 50.

[11]  For details on how infringing IPTV operates see European Union Intellectual Property Office (2019), Illegal IPTV in the European Union, Research on online business models infringing intellectual property rights – Report, November 2019

[12]   EUIPO – EUROPOL (2019), Intellectual Property Crime Threat Assessment

[13]  See Joined Cases C- 403/08 and 429/08 Football Association Premier League Ltd and others v QC Leisure and others and Karen Murphy v Media Protection Services Ltd (2011) ECR-I-9083. The ECJ ruled in Premier League case (C-403/08) that “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. Accordingly, those events cannot be protected under copyright.”

[14]  See case C-403/08

[15]  Article L 333-1 paragraph 1 of the French Sports Code

[16]  Confirmed by ECJ in case C403/08:“European Union law does not protect [sporting events] on any other basis in the field of intellectual property”

[17]  See Study on sports organisers’ rights in the European Union, T.M.C. Asser Instituut / Asser International Sports Law Centre and Institute for Information Law - University of Amsterdam, February 2014, p. 53

[18]  See Articles 2 and 3 of Infosoc Directive and Article 9 of Rental Directive

[19]  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')

[20]  Article 14(1)b

[21]  Directive (EU) 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights

[22]  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

[23]  Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee entitled “Guidance on certain aspects of Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights” (COM(2017) 708) of 29 November 2017

[26] Synamedia Report, Charting Global Sports Piracy: Understanding sports fans and what drives their behaviours, 2020.

Last updated: 5 May 2021Legal notice - Privacy policy