Embed Size (px)
Citation preview
www.dlapiper.com 0 20 October, 2016
20 October, 2016
PRE-SPORTEL BRIEFING
Sport Copyright and Technology
www.dlapiper.com 1 20 October, 2016
Nick Fitzpatrick
Global Co-Chair, MSE Sector
1 Digital Single Market and the audio-
visual ecosystem in Europe
2 Copyright protection for sports
broadcasts and its enforcement
3 Opportunities of Digital Technologies in
Sports
Agenda
David Pahl
Senior Counsel
John Cloke
Partner
Patrick Mitchell
Legal Director
Lluís Borrell
The Global Head of Media,
Analysys Mason
Digital Single Market and the audio-visual ecosystem in Europe 1
www.dlapiper.com 3 20 October, 2016
Digital Single Market – 16 initiatives
3
www.dlapiper.com 4 20 October, 2016
Key issues:
"Temporarily present"
Verification of "member state of residence"
Application to free services
Transition/implementation period
Timeline:
Commission proposal – December 2015
Council "General Approach" – May 2016
Parliament Committees considering and discussing – ongoing
Parliament amended proposal – approx end of 2016
Commission approval and then implementation period
The draft "Portability Regulation"
www.dlapiper.com 5 20 October, 2016
"The acts of communication to the public and of making available occurring
when providing an ancillary online service by … a broadcasting
organisation … shall, … be deemed to occur solely in the Member State
in which the broadcasting organisation has its principal establishment "
– "ancillary online service" = simulcast and catch-up
– NOT standalone online service
"When fixing the amount of payment to be made for the rights … the parties
shall take into account all aspects of the ancillary online service such as …
the audience and the language version"
Optional?: "through the principle of contractual freedom it will be possible to
continue limiting the exploitation of the rights affected by the principle of
country of origin laid down in the Regulation…. . provided that any such
limitations of the exploitation of those rights are in compliance with
Union law" – Recital 11
The draft "Digital COO Regulation"
www.dlapiper.com 6 20 October, 2016
Pay TV Investigation
– launched 2014
– statement of objections July 2015
– Paramount commitments accepted July 2016
– conclusion end 2016? Appeal…?
E-Commerce Sector Inquiry launched – May 2015
– Questioned 278 service operators and 53 rights holders
– Received information on over 6000 licence contracts
– Initial findings published – September 2016
Agreement to geo-block "may restrict competition in the
Single Market in breach of EU antitrust rules"
– Consultation closes 18 November. Final report – Q1 2017
– Investigations?
Pay TV Investigation and E-Commerce Sector Inquiry
www.dlapiper.com 7 20 October, 2016
Gradual approach:
"The ultimate objective of full cross-border access for all
types of content across Europe needs to be balanced with the
readiness of markets to respond rapidly to legal and policy
changes and the need to ensure viable financing models for
those who are primarily responsible for content creation. The
Commission is therefore proposing a gradual approach to
removing obstacles to cross-border access to content and to
the circulation of works. .. As a first step, the Commission is
presenting together with this Communication a proposal for a
regulation on the ‘portability’ of online content services" –
December 2015
Portability + Digital COO + adverse Pay TV
decision/passive sales = ….? Tipping point?
What next?
www.dlapiper.com 8 20 October, 2016
Lluís Borrell, Partner and Global Head of Media at Analysys Mason:
Over 20 years’ media and telecoms sector experience
Leads Analysys Mason’s Media Practice globally, including over 150 media
projects across more than 35 countries
Extensive experience of media regulation on issues across the whole value
chain for linear and non-linear TV
Has worked on media assignments across many EU Member States, including
the UK, Spain, Italy, France, Germany, the Netherlands, Finland, the Czech
Republic, Slovakia, Ireland, etc.
Regularly writes articles and speaks at conferences in Europe on media
market developments and critical issues for all stakeholders
Introduction
www.dlapiper.com 9 20 October, 2016
What was the issue?
What mechanisms were considered by the EC?
What was our overall assessment?
What has happened since our assessment?
The following slides present our views based on a recent study we carried
out on behalf of the SROC (published in June 2016)
Key questions
www.dlapiper.com 10 20 October, 2016
“A Digital Single Market for Europe”
Source: “A Digital Single Market for Europe – One year on”, European Commission, 30 October 2015
What was the issue?
The DSM aims to address a set of so-called “key obstacles” through a series of measures
www.dlapiper.com 11 20 October, 2016
Potential mechanisms/scenarios for implementing the DSM
Note: Our assessment was carried out in the context of a successful existing ecosystem
What were the mechanisms considered by the EC?
We defined five EC’s DSM implementation scenarios and made a comparative assessment
www.dlapiper.com 12 20 October, 2016
What is our overall assessment? Portability acceptable if implemented with care; cross-border scenarios carry disproportionate risk
positive neutral negative Key:
Source: Analysys Mason
www.dlapiper.com 13 20 October, 2016
What has happened since our assessment?
Overall, territoriality of rights seems to be protected but there are still risks to sport
Source: Analysys Mason
Copyright protection for sports broadcasts and its enforcement 2
www.dlapiper.com 15 20 October, 2016
Creation of the broadcast product will usually involve the
creation of a number of copyright works, which can include:
– Film works (feeds, replays)
– Artistic works (logos, graphics etc.)
– Musical works (e.g. competition theme music)
– Broadcast works (rights in the actual transmission)
Through control of access to venues, sports organisers can
secure assignment of all IP created
Copyright ownership key to licensing and enforcement
Copyright works in sports broadcasts
www.dlapiper.com 16 20 October, 2016
Copyright is a national right – minimum international
standards but variation between countries
– Sports organiser's right?
Remedies
– Blocking injunctions
– ISP liability
– "Follow the money"
Technological solutions
– Content recognition technology
– Subscriber level watermarking
Effectiveness – jurisdiction, remedies and technology
Opportunities of Digital Technologies in Sports 3
www.dlapiper.com 18 20 October, 2016
Greater competition
Twitter/NFL
Old media vs. new media
TWDC and Twitter
No erosion in existing exclusivities
Opportunities for Rightholders
www.dlapiper.com 19 20 October, 2016
Greater reach (TVE)
− Issues
− Regional sports nets
Greater shelf space/monetising
opportunities
New revenue streams (OTT/PPV)
− Includes leagues as media entities
− TWDC/BAMtech
− OTT – wholesale and retail; barriers
Opportunities for Media
www.dlapiper.com 20 20 October, 2016
Streaming sites
− Music precedent; Rightsholders v. YouTube
− Poor remedies
Sports highlights, gifs and Fair Use
Opportunities for Pirates
www.dlapiper.com 21 20 October, 2016
Daily Pay Fantasy
Single day version of the season-long game
Much closer to a bookmaking bet
Aggressive entrepreneurs/highbrow investors/confused
law/mixed messages
Leaked information; “insider” profits
Legal tsunami
− Enforcement/regulatory/legislative actions
− Consumer class actions
− “Name and likeness” claims
Don’t be a lemming
Opportunities for New Products
www.dlapiper.com 22 20 October, 2016
