National Law School Of India University

The Spiritus Sports Law Essay Competition 2013

Sports Rights - What proprietary rights does and should an event organiser have with respect to match scores?

RONAK KARANPURIA
LL.M. 2nd year, NLSIU

September 8, 2013 Authored by: Ronak

INTRODUCTION
The spectacular event like FIFA, NBA, Cricket, Brazilian football, grand slam tennis, F1 race,Wrestling & others where IPL1 is latest example with top quality athelitcs & sports personalities full of drama and energy, characterized by impatient audience, not just seen by local people but broadcast to millions other way round the world, media reporting with the ability to experience sports without being physically present at the match with enhanced experience including instant scores, highlights, replays and analysis built on their own culture and traditions like cheerleading, fireworks, music etc. wide news coverage and eminent perosonalities all over the world. The events like 2008 Olympic, 2006 FIFA world cup final, 2011 cricket world cup final, public demand for instant news or real time generated news with results led to cutthroat competitive struggle, watched by millions of people with billion dollar investment, organized & managed by big giant companies like COCA-COLA, PEPSI etc. individually or jointly has significant economic activity associated with number of legal right like Intellectual property worthy of protection holding monopoly to restrict traditional media &
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internet service providers who are gaining money at the expense of big corporates has triggered legal dispute in the filed of intellectual property, contract law, competition law & common law doctrines as to who will ultimately controls the information generated from the event, way the public receives it and the rights associated with it. The legal theories explaining sports rights juggling with source of information, rights with respect to the information i.e ownership rights and rights of stakeholder in the events like broadcaster, key players, managers, licencee, sponsors, franchisee etc. Each of these stakeholders will have different interests or rights associated with the exclusive licence to prohibit the unauthorized broadcasting & its end user outside the Member State for which the licence is granted as the where one right trumps one over the other & under different factual conditions which court has to unresolved.

IPL: Indian Premuire League available at < www.iplt20.com/> accessed 10 September 2013 Manas Kr Thakur Chairman, EIRC of ICWAI, IPL is more of a money game than of Cricket where Management Accountants could play the role of first, second and third umpire all put together. Avaialable at <http://www.eircoficwai.com/Articles/8908-ipp.pdf> accessed 10 September 2013
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This essay canvases the issues involved in sports or an event, potentional intellectual property rights existing in the event w.r.t. event organizer and particularly about information bring forth from the event and prespective of an entity attempting to maximize commercial benefits from the relevant arrangement, issues relevant to other stakeholders will be addressed.

SPORTS BUSINESS
The idea that the sports is just a recreational activity is an obsolete imagination, it create and maximize commercial opportunities against proprietary rights2 in broadcasting, reproduction, distribution, importation, transalation & adaption, unauthorized exploitation and unjust enrichment to integrate services and deliver opportunities for corporate houses which no longer just manage athletes but organize events, bring association b/w sponsors, managers & broadcaster. In order to promote and achieve these goals legal protection is necessary with specific rights, liabilities, duration, ownership, transfer and limits with the enforcement of such rights against infringement. A trend evident rapidly expanding media coverage of sporting events, sports industry target audience for the purposes of marketing products, resulting in a unique opportunity for athletes to attain both fame and financial security during their short-lived playing careers. The demand for these products results in immense profits from lucrative endorsement contracts for the most celebrated athletes like Tiger Woods, Sachin Tendulkar, Ricky pointing, Mahendra Singh Dhoni, Michael Jordan, tennis plyer Maria Sharapova etc. Since there is much at stake, chance of injury is common in games, players try to capitalize as much as they can from consumers by marketing himself and
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WIPO Publication Understanding & copyright related right <http://www.wipo.int/export/sites/www/freepublications/en/intproperty/909/wipo_pub_909.pdf> accessed 10 September 2013 Intellectual property relates to items of information or knowledge, which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information or knowledge reflected in them. Intellectual property rights are also characterized by certain limitations, such as limited duration in the case of copyright and patents.
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his abilities while on the field. Legal protection & to ensure every success with determined rights can be a key component for players or event organizer market power earnings derived from that market power.

IDENTIFYING IPR IN AN EVENT

Intellectual property may subsist in an event in the form of design, logo, team dress colours, scores in broadcasting in the form of copyright, trademark, patent & design. The area of discussion is confined to copyright only where it grants protection "works"3,
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defined as literary, dramatic, musical

or artistic works and in sound recordings,

cinematograph film. This would include audio-video broadcasting of an event with production and replication4. Now to get copyright protection5 to any work it must be reduced to material form, must be original6, to display to public not being in circulation and it is a product of the author7 by his own skill & labour8. Copyright subsist in the dramatic event, where ideas and expression is already predetermined. But the question arose is whether a sports event in respect of match score seeks copyright protection, if yes then who is the owner? What are proprietary right associated with an event? Whether players performance is protected or the result of their performance is protection? Is it legally entitled to get similar protection for controlled and uncontrolled event? If the result of the event is not protected under copyright law, is it protected under common law? Whether the display of match result or its update by any

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Act 1957, s.2(y) See, Landes and Posner argue, are that they are easily replicated and that enjoyment of them by one person does not prevent enjoyment of them by other persons <http://www.law.harvard.edu/faculty/tfisher/iptheory.html> 10 September 2013 5 ibid s.14 6 ibid s.13 7 ibid s.2(d) 8 Eastern Book Company and Others v D.B. Modak and Another (2008) (1) SCC 1 Court observed: in paragraph 14. The copyright protection finds its justification in fair play. When a person produces something with his skill and labour, it normally belongs to him and the other person would not be permitted to make a profit out of the skill and labour of the original author and it is for this reason the Copyright act, 1957 gives to the authors certain exclusive rights in relation to the certain work referred in the Act. The object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others.

means by an un-authorized person deems to infringe the right of rebroadcast i.e. exclusive right to use and license. Ownership rights means right to assign, transfer or sell original work fixed on tangible medium subsist by author of the work who shall be the first owner9 unless there is an agreement to the contrary or the work in question is a work for hire. Work for hirre means work done specifically under the control and direction in the way of employee & employer relationship. In sporting event, scores are the final output either the creation of player or event organizer as both put their skill and labour. Player do hard work which is original creation of their own and based on the performance they get the result while event organizer put labor and skill in analyzing the performance of sports athletic based on set of game rules and then generate the match scores. If there is any copyright subsist in match score that goes to event organizer reason being copyright goes to creator of the work i.e. event organizer in casse of match score by analyzing, accessing and managing the scores. In tournaments players put their efforts, skill & labour which is their original work subject to rules of game and they are entitle to victory based on their scores but are the match scores copyrightable. Why copyright in match scores, answer is simple as lot of money is
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involved is displaying the result a real time information to public on demand so everybody in the market like television reporters, online internet providers are in a hurry to capture the consumer market. Match score is the analysis of performance performed by players based on certain game rule in an event by event organiser. Certainly event organizer is legally entitled to certain rights w.r.t copyright work. Match score is basically a organized set of information in the form of graphs, set of tables, ratio analysis & other mathematical expression based on the facts or performance of players. Is it transformative or derivative work and can seek similar protection, displaying event based on underlying work. Such derivative is protection only if it is original and underlying work is also copyrightable. And such transmission and distribution of match scores simultaneously by other providers infrigne and hence should be prohibited from any commercial gain. In sporting event like cricket or football matches they are followed by the rule of game, where there is no scope for players to do creative work to get copyright protection but
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ibid 3, s. 17

another point is that coaches and team members made plan for further direction with new strategy all the time which is original work but the reason to be unprotectable is they may not be able to formulate such plans to that extent. As in Norowzian film10 where man dancing steps were edited and seek copyright but that sequence remains unprotected being unable to perform in front of audience, in the case of dance performance what is gonna performance is already planned. Play can be dramatically performed with existence of plat, story, framework that attribute is absent which make it difficult to get protection as dramatic work.11 The idea itself is not protected under copyright law, it is expression which is protected, so the performance by players in sporting event based on game rule, is work of action with random series of events totally upredictable.12 In Seltzer
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case court held that a description of an athletic competition could not be copyrighted as a drama because it lacked plot and characters.13 Instead, the rules and procedures described in plaintiffs book were a system, which is something that can never be copyrighted14. In National Basketball Association v. Motorola, Inc.15 that display live scores and other information about NBA basketball games based on the service providers observation of broadcasts of those games was an infringement of their copyright in the games. However court held that protection was not extended to the underlying events. It held that a sports event is not a work of author and such should not be protected by copyright law.16 And hence even if we considered match score as transformative or derivative work are not liable to get copyright protection as underlying event i.e. sporting event17 itself is un-predictable and un-protectable and so is the match scores. If every player in an event like cricket, football or Olympic ask for copyright work

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Norowzian v Arks Ltd & Anor [1999] 2 EWCA Civ 3014 v Broadcasting Corporation of New Zealand (1989) RPC 469 12 FWS Joint Sports Claimants v Canada (Copyright Board) [1991] 22. PIR 429 13 Seltzer v Sunbrock (1938) 22 F. Supp. 628,629 (S.D. Cal. 1938) 14 ibid 630 15 105 F.3d 841 (7th Cir. 1997) 16 ibid 846 17 ibid Sporting events, stating: [s]ports events are not authored in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it.
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as a creator, event organizer has to seek permission from each before broadcasting which is more complicated in case of international event when players from round the world participate with different copyright law pertaining to their jurisdiction. Another issue w.r.t match score is that is there any creative work in it or is just factual information. Match score must be creative aspects of collection, creativity in the sense of what data to exlude or include, the order and style in which the information is presented, etc., but not on the information itself. Which mean to say that one can get copyright protection is information is arranged in a creative manner subject to fulfilling other condition of copyright law.18 In Feist case19 Supreme Court came to the conclusion that information alone without a minimum of original creativity cannot be protected by copyright. One of the argument is that copyright is not about protecting ideas, because one can acquire a copyright by expending skill, labour, and judgment, but no creativity or inventiveness. Under a "sweat of the brow" doctrine20, the creator of a copyrighted work, even if it is completely unoriginal21, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The subject matter of the work to be original in the sense its authors own creation. Copyright is a personal property and it protects only authored events but sports like cricket or football is an un-authored events, as there is no script or plot which is choreographed instead of that they followed a strategy which always depend on the ability of themselves and opponent which in turn depend on situation & time. A work is to be "fixed" in a tangible
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World Trade Organization. Part of the Uruguay Round Agreement resulted in text which states, Part II, Section 1, Article 10: Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself. 19 Feist Publications, Inc., v Rural Telephone Service Co., 499 U.S. 340 [1991] 20 Hailshree Saksena, Doctrine of Sweat of the Brow <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1398303> accessed on 10 september 2013 21 CCH Canadian Limited v Law Society of Upper Canada, (2004) 1 SCR 339 Court held that an original work be the product of an exercise of skill and judgment" where "skill" is "the use of one's knowledge, developed aptitude or practised ability in producing the work" and "judgment" is "the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work". As well, "[t]he exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise."[9] Importantly, it is required that the work "must be more than a mere copy of another work."[9] However, "creativity is not required to make a work 'original'

medium22 of expression like picture, audio or video or any record for the purpose of reproduction which is sufficiently permanent or stable for a period of time, here sporting event itself is not copyrightable instead audio-video footage gets the right to get protected. Match scores are also fixed on some tangible medium but cant get copyright protection reason being just a factual information with no creativity and even the underlying event lacks copyright protection. Now as the match scores are transmitted by broadcaster, it gets the exclusive rights generally an agreement occur between broadcaster and event organizer for a monopoly to transmit information emanating from an event such as real time scores. In Barclays Capital Inc. v. Theflyonthewall.com23 court held that the hot news misappropriation
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doctrine24 prohibits a financial news aggregation website from sending subscribers stock recommendations that were researched and developed by analysts from various other financial firms. The court found that the website, Theflyonthewall.com, was liable under the hot news misappropriation doctrine for disseminating time-sensitive information gathered by the firms in direct competition with the website. While the firms gathered the information at a cost, the website was free-riding on those efforts, potentially reducing the incentive to produce the information. The court found this free-riding25 substantially threatened the existence or quality of the gathered information. The argument is that no copyright subsists in match scores due to just factual information but still it is a unique property right, which stems out of a negative obligation of others not to use it commercially against competitors who are commercially exploiting such match information by disseminating it instantly through various information medium. The question is

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Music Broadcast Private Limited vs Indian Performing Right Society [2011] (113) BOMLR 3153 650 F.3d 876 (2d Cir. 2011) 24 Intl News Serv. v Associated Press, 248 U.S. 215, 245 [1918] The hot news misappropriation doctrine states that while the facts and ideas produced by a content producer may not be copyrightable, the content producer invested time and resources in obtaining this content and should retain some right to derive revenue from that content until its commercial value has passed. For a competitor to take that content and resell it, without incurring the costs associated with gathering it, unfairly injures the content producer 25 Natl Basketball Assn v. Motorola, Inc., 105 F.3d 841, 845 (2d Cir. 1997) Court found that free riding implies that (i) a plaintiff generates or gathers information at a cost; (ii) the information is time-sensitive; (iii) a defendants use of the information constitutes free riding on the plaintiffs efforts; (iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and (v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened

unauthorized dissemination of information appears to be unauthorized copying of facts which is not copyrightable. So ownership of match scores is not a copyright issue but a violation of common law doctrine and an unfair competition issue. In International News Service26 case court recognize information like match score as a quasi-property where court formulate the hot-news doctrine, applicable to cases in which one party used its labor, skill, and money to follow and to report time-sensitive fruits of the plaintiff efforts and expenditures. In such case competitors that concurrently expend labor, skill, and money to make profits, the news becomes a quasi -property, regardless of either competitors rights against the public.27 Hot news misappropriation28 claim survive when one party must expend resources collecting information as part of its business, while another party copies that information and distributes it as its own research in competition with the first party. The action against news aggregator and feed provider over internet is very less reason is they take the source content and reword it, instead of copying and reprinting large portions of it. Copyright infringement is not possible because most part is rewritten or reedited. One of the argument is that match scores resembles quasi property.The idea of quasi property resembles the property rights even strictly speaking they are not property rights basically a right to exclude others over some interest that is, ownership for an act that
Intl News Serv (n 24). ibid 236. 28 See Akuate Internet Services Pvt. Ltd v Star India Pvt. Ltd. & Anr <http://indiankanoon.org/doc/66104323/> accessed on 10 september 2013 As framed by the NBA, their claim compresses and confuses thre e different informational products. The first product is generating the information by playing the games; the second product is transmitting live, full descriptions of those games; and the third product is collecting and retransmitting strictly factual information about the games. The first and second products are the NBAs primary business: producing basketball games for live attendance and licensing copyrighted broadcasts of those games. The collection and retransmission of strictly factual material about the games is a different product: e.g., box -scores in newspapers, summaries of statistics on television sports news, and real-time facts to be transmitted to pagers. In our view, the NBA has failed to show any competitive effect whatsoever from SportsTrax on the first and second products and a lack of any free-riding by SportsTrax on the third. An indispensable element of an INS hot-news claim is free riding by a defendant on a plaintiffs product, enabling the defendant to produce a directly competitive product for less money because it has lower costs. SportsTrax is not such a product. The use of pagers to transmit real-time information about NBA games requires: (i) the collecting of facts about the games; (ii) the transmission of these facts on a network; (iii) the assembling of them by the particular service; and (iv) the transmission of them to pagers or an on -line computer site. Appellants are in no way free- riding on Gamestats. Motorola and STATS expend their own resources to collect purely factual information generated in NBA games to transmit to SportsTrax pagers. They have their own network and assemble and transmit data themselves.
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news. This doctrine, the Court observed, would prevent competitors from reaping the

benefits the social good. It to be understood in a way like quasi contract is a contract like situation, quasi tort creates tort like similarly quasi property29 create a property like situation which was propounded in INS (supra). But whether such rights exist in match scores to event organizer? Well, as discussed right to exclude others from using information whether creating money from it or not. Quasi-property interests thus hang in the air, to borrow thenChief Judge Cardozos analogous description of negligence law, unless or until a defendant is identified.30 Any idea or interest to become a quasi property must fulfill two conditions i.e exclusion to others and trigeering mechanism31. Until and unless these circumstances arise, the resource in question remains nullius in bonis(i.e., unowned). If the match scores fulfill such criteria then only event organizer get the right to exclude other otherwise not.

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CONCLUSION
In spite of general uncertainty of law in the area of sports law as what are the proprietary rights associated with an event i.e nature and extent of such right, as to who owns these rights in sporting event courts of various jurisdiction is not unanimous, some recognized quasi property rights and hot news misappropriation doctrine and free riding concept in regard to time sensitive information. Law is clear that to get copyright protection such information must be original and some form of creativity is necessary. It is also clear from above case analysis that sporting event as such is not copyrightable. With regard to match score, they are factual information and no right subsists in copyright law, so copyright protection is not available. It is also clear that such information is a time sensitive information, free riding may be possible, it can be a use of unfair competition. Also there is possibility of get unfair advantage and in such case law of tort will be applicable,

Arkansas law, the nextof kin [has] a quasi-property right in a dead body. Fuller v Marx, 724 F.2d 717, 719 (8th Cir. 1984). Cohen v Groman Mortuary, Inc., 41 Cal. Rptr. 481, 483 (Dist. Ct. App. 1964) 30 Palsgraf v Long Island R.R., 162 N.E. 99, 99 [N.Y. 1928] 31 SHYAMKRISHNA BALGANESH, QUASI-PROPERTY: LIKE, BUT NOT QUITE PROPERTY quasi-property interests originate in the circumstances of parties relationships broadly understood . What trig-gers courts identification of theserelationships (for their invocation of quasi -property) is (i) the status of the parties vis--vis each other, (ii) the unique environment or context within which they interact, (iii) the nature wrongful or otherwiseof one partys actions, or (iv) a combi-nation of these factors. Each of these factors requires brief elucidation.
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possibility of having tortious remedy. It is unsettled whether there is any quasi property rights existed in such information. Identification of these relationships for invoking quasi property depend upon factors like the status of the parties, their interaction, wrong cause, combination of these factors etc.

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