Three men who sold illegal streams of football matches to more than 1,000 English pubs, clubs, and homes and who made five million pounds over a ten-year period from these activities, have been sentenced to significant prison terms (three, six and seven years) by the Warwick Crown Court in England.

 

Illegal streaming of English football matches

England’s top football league has a very strict and active piracy policy. For example, last year almost 200,000 illegal match streams were detected and removed from various servers. In addition, 450,000 illegal clips and other content were removed from social and digital media outlets.

 

The Premier League’s piracy policy relies mainly on a court order that they have been applying for at the High Court of Justice for each new football season since 2017. This injunction requires English Internet Service Providers (ISPs) to block all servers hosting illegal streams (‘live blocking injunction’). This is a rather ‘flexible’ approach in the sense that the list of servers to be blocked can be adapted every week, which comes in handy since infringers have the bad habit of frequently changing their IP address and domain name.

 

This is not the first time that the operator of an illegal streaming service is punished with a prison sentence: in July 2018, a man was sentenced to five years’ imprisonment for similar offences.

 

Illegal live streaming of Belgian football matches

In Belgium too, illegal streaming of football games in the Pro League is actively fight against. The Belgian Pro League uses an algorithm called ‘Marauder’. This system, developed by the Spanish LaLiga, detects illegal videos and streaming platforms on websites and social media and tries to block them automatically.

 

In addition, the Pro League also works together with Google and Facebook to have illegal videos on YouTube and Facebook removed quickly. Finally, the Pro League has also started its own “Piracy” working group.

 

Football matches and copyright

Although the term ‘piracy’ is often used here, it should be emphasised that, in contrast to, for example, films and series, football matches are in principle not protected by copyright. The Court of Justice of the European Union (the “CJEU”) already emphasised this in 2011, in an earlier case concerning illegal streams of Premier League matches. It stated: “However, 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. It is, moreover, undisputed that European Union law does not protect them on any other basis in the field of intellectual property.” (C.403/08 and C.429/08, Football Association Premier League Ltd and others v. QC Leisure and others; and Karen Murphy v. Media Protection Services Ltd).

 

The CJEU did not close the door on a certain protection for sports competitions, but it seems that such protection cannot take the form of copyright protection. Sports competitions are thus a “matter of its own” in this respect. The CJEU recognises that sports events can be unique and original, so that they may be eligible for another, similar protection (but not copyright protection).

 

In other words, the CJEU allows European Member States to protect sports events and the owners of the broadcasting rights to them, in a similar way as they protect copyrighted works. According to the CJEU, this can be done either by means of a specific national regulation, possibly based on intellectual property protection, or by the recognition of the protection provided by agreements concluded between the parties holding the broadcasting rights to the matches and the parties wishing to broadcast those matches.

 

However, a distinction must be made between the sporting event itself – which, in principle, is not protected by copyright – and the images taken of the sporting event. There is case law that states that these images may be protected by copyright. This also applies to commentaries and graphically elaborated analyses. For instance, the British High Court of Justice acknowledged in the above-mentioned case of March 2017 regarding ‘live blocking injunctions’ against ISPs that the Premier League owned the copyright on the footage of football matches. In the Netherlands, the Court of The Hague acknowledged in January 2018 that a live broadcast of a football match can indeed be protected by copyright, if the creators of the video footage make sufficient creative choices such as, for example, in the arrangement of the cameras around the field, following certain moments of play, moving the cameras along during the match, switching between the different cameras, zooming in and out, repeating certain moments of play, adding commentaries, etc. We note in this regard that this is a grey area and that such decisions may be at odds with (higher) case law of the CJEU.

 

Football rights contracts

In practice, the broadcasting rights to football matches are mainly fixed by contract, with rightholders such as the Belgian Jupiler Pro League, the English Premier League and UEFA concluding agreements with companies such as Proximus, Telenet and Medialaan (to name a few Belgian companies). As a result, the penalty for illegally streaming sports matches is not always clear. Apart from a criminal sanction, the rightholders can of course also claim damages as a result of the illegal streaming activities. Since this sector often involves contracts running into millions of euros, the damages for illegal streaming of sports matches can be considerable.

 

If you broadcast sports matches in your business (e.g., catering industry) or on a big screen in the open air, copyright management companies such as the Belgian Sabam can in principle also collect rights for the use of music during the match. It is best to take this into account.

 

Do not hesitate to contact us for further questions regarding streaming in your business.

 

Authors: Pepijn van Lith and Bart Van Besien