Copyright in Sport

LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport

‘Intellectual Property Rights in Sport’

A critical analysis of Intellectual Property Rights within Sport, focusing upon the role of Copyright in Football

LW556 INTELLECTUAL PROPERTY LAW DISSERTATION 2005/2006

STEFAN HAGAN

Supervisor: Alan Story

Words: 5,289

1/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport

CONTENTS

Abstract p3

Introduction p4

Overview of IPR’s within football p5

The origins of football p7

Justifications of IP (in a Copyright context) p9

(i) ‘The Labour Theory’ p9

(ii) ‘The Law and Economics justification’ p11

Vulnerability of fans p12

Success relies upon access p14

Specific Examples of the Copyright conflicts p14

(a) Fixture List conflict p15

(b) Photographs p16

(c) Commentary / Goal replays p18

(d) Broadcasting & the Internet p19

Bad market sense p21

Conclusion and idea for the future p22

Bibliography p24

Abstract

Sport has commonly been heralded as a universal language that brings competitors and fans together with no distinction of class or race. This public inclusion has been particularly evident in football/soccer, where fans created most English clubs and the sport is often referred to as ‘the beautiful game’ open to every one of all walks of life and belonging to the people. The professional game has come along way since then, particularly since the creation of ‘The Premier League’ in 1992, which ensured total club revenues of over £1.3 billion in 2003–04.

Football Clubs now act as businesses as have therefore recognised the value of intellectual property rights (IPR’s) and have striven to privatise anything possible of profit, using IPR’s to protect materials from pictures to fixture lists. This total business approach is inappropriate and it is reducing the public domain and forcing fans with a very distinct and unique moral claim, to now pay for the materials that once belonged to them. This greed is an exploitation of fan loyalty and a failure to recognise the innovative market strategies that have become available through the development of technology such as the Internet.

Introduction

"Liverpool fans are crazy, they were unbelievable, and I'd like to dedicate this victory to them,1 I am so happy to lift the cup for the fans,”2. One of the countries top players,

Steven Gerrard, is seemingly recognising the social significance football holds for its fans. However, Copyright and other IPR’s fail to respect this aspect and seek to exploit it.

Copyright, like all IPR’s are restrictive in nature due to the strong property right they prescribe over non-rivalrous intangibles. “Copyright laws, restrict the social flows of texts, photographs, music, and most other symbolic works”3. The system of

Copyright generally treats all qualifying material as meriting the same protection regardless of its content, which is worrying when coupled with laws expansion, allowing growing materials to be protected which has allowed businesses to adopt a philosophy of ‘if it is worth money somebody should own it’. The strong property right awarded has allowed companies to recognise their business potential at the expense of the paying customer. As shall be evidenced below, football clubs are also becoming commercially aware and are realising their particularly large business potential through IPR’s and in particular through the use of Copyright. This awareness has effectively privatised sporting materials, which are significantly different in character to the subject matter IP law originally had in mind. This privatisation is in clear tension with football fans desire to interact with the sport and their club.

1 http://news.bbc.co.uk/sport1/hi/football/europe/4578603.stm 2 http://news.bbc.co.uk/sport1/hi/football/europe/4582585.stm 3 “Objects of Property and Subjects of Politics: Intellecual Property Laws and Democratic Dialogue”, Romsemary Coombes 69 Texas Law Review 1853 (1991)

The IPR regime is effectively a system of “private gain in service of the public good”4 which is a particularly inappropriate system in regards to sport and more specifically football. I argue this based on the belief that the justifications Copyright are unpersuasive in the sporting sphere due to football’s different characteristics and origins, and their full enforcement serves merely an economic purpose which preys on the vulnerability of fans. I outlay several general points as well as specific examples to show the clear conflict between the economic approach being taken by league authorities and clubs, and the fans desire to interact with their club.

Overview of IPR’s within football

IPR’s within Sport have become an extremely important asset, as is the case for many modern commercial businesses. This commercial recognition within football and the reliance upon IPR’s such as Copyright can be shown by Manchester United F.C. recently losing its crown to Spanish giants Real Madrid, as the football club with the biggest annual income in the world. These below data shows that IPR’s are in fact the biggest asset and stream of revenue a major football team can have.

A staggering 42% of Real Madrid’s £190million income was from commercial deals such as merchandise sales and sponsorships with multinational companies such as Siemens,

Addidas and Pepsi5. Added to this, 24% of the income came from television coverage and 8% came from promotional activities they are asked to undertake due to the ‘brand’ they have built up. Such activities include pre-season friendly tours in areas such as the

Far East, which cements its position and brand on a wider scale whilst increasing its fan

4 “From Signal of Source to Frozen Signs” in “Authors, Inventors and Trademark Owners: Private Intellectual Property and the Public Domain” Keith Aoki 18 Columbia-VLA Journal of Law and the Arts 1994 191 5 http://news.bbc.co.uk/2/hi/business/4307808.stm

5/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport base. This ‘brand’ or experience they have built up is protected by trademark regulation 6 and ‘passing off’, in a similar vein as copyright law7 covers their live match footage and some merchandise sales such as DVD compilations. Many clubs have experienced success on the pitch, but the reason why Real Madrid has such a brand is because they realised the business potential of football which is built upon IPR’s and the popularity and

‘unique loyalty’ held by clubs customers (the fans). The club have continued to pursue paper coverage by building its brand via purchasing big name players, the best example being David Beckham who is a brand name himself, and very conscious of his IPR’s as shown through the several commercial sponsorships he holds/has held e.g. Addidas,

Police fashion, Gillette and Brylcream and his registered trademarks8. David Beckham cost real Madrid £25 million but this as well as his lucrative £4 million annual pay will be re-couped through the activities mentioned, for instance £425,000 of Real Madrid shirts bearing his name were sold on the day his transfer was completed9. In fact even David

Beckham is conscious enough of IPR’s and building up an image, as he receives roughly three times the sum he gets for playing football through lucrative sponsorships made possible due to IP rights such as the goodwill he has in his name. Through the use of

IPR’s football has clearly become big business and as a result it has attracted business driven individuals to the game, which I argue has had negative effects upon fans interests.

Football has moved increasingly further away from its public origins and is run as a business10 and this is evidenced not merely through the reliance upon IPR’s. This commercialisation can be evidenced in several other instances too with both large and small clubs being affected. For example Manchester United F.C’s recent corporate

6 Protected by the Trademarks Act 1994 7 Protected by the Copyright Designs and Patents Act 1988 8 http://webdb4.patent.gov.uk/tm/text?searchtext=Beckham&typeofsearch=S&classselected=99& crosssearch=Y&statusselected=A 9 http://en.wikipedia.org/wiki/David_Beckham 10 http://football.guardian.co.uk/News_Story/0,,1323815,00.html outlines the changing nature of football and why this was drew the Glazier to the sport

6/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport takeover11 and Wimbledon F.C’s relocation franchisement12 show the business objectives at all levels and these examples also show how these aims conflict with fans desires to protect their clubs roots and have access to ‘their’ team13. The Businessman’s involvement in football for mere financial incentives is becoming a regular story, as is evidenced by Brentford F.C where Ron Noades ran the club for mere tax advantages without regard to the effect upon fans14, leaving the club in millions of pounds of debt, and like many other crisis clubs the fans were left to rescue the club15. Businessmen profit from IPR revenues within the sport (as well as other projects such as selling the clubs home ground which also receives little protection), and restrict fans access whilst damaging an area’s social identity16. The effect upon the fans is extremely significant and the football authorities and clubs should properly protect the social significance of football they claim to recognise themselves. The authorities should act accordingly to ensure football is not treated purely as a business as many other aspects are in play, and this is vital for the sake of the fans and the game. The attractive income that occurs due to the strength of IPR’s are a key feature recognised by investors and if a system were to be devised to balance profit against the interests of the fans then this would be the authorities using IPR’s in a positive and balanced way, rather than a purely economic way.

The origins of football

11 http://news.bbc.co.uk/1/hi/business/4629401.stm 12 http://wimbledon.rivals.net/default.asp?sid=900&p=2&stid=8271036 13 http://www.afcwimbledon.co.uk/ and http://www.fc-utd.co.uk/ evidence the new clubs fans have set- up to retain their origins. 14 http://brentford.rivals.net/default.asp?sid=915&p=2&stid=8401567 15 http://football.guardian.co.uk/News_Story/0,,1691677,00.html 16 http://www.supporters-direct.org/englandwales/about.htm evidences supporters trusts which have been set-up for so many clubs to deal with the state of how clubs are left in financial ruin

It is important to be aware of the origins and the social significance of the sport of league football, as when contrasted with the commercial game that exists today it adds weight to my arguments that IPR’s should be limited.

Since the Factory Act of 1850, industrial working class workers had state sanctioned recreational Saturday afternoons, which occurred at the same time transport was improving and the Football Association was encouraging the expansion of the game.

This “provided the means for the nationalization of sport which led to the emergence of urban working-class soccer in the textile and industrial towns of the North and Midlands where the game acquired its popularity as a spectator sport”17. These working class football teams that were set-up by factory workers are the clubs that have developed into the football league clubs of the modern game18.

Football was so popular within the bulk of society (the working classes) that it became known as the national or ‘people’s game’ as it was enjoyed across the social spectrum thanks to the low participatory costs involved. However, sport was also very much a common persons spectator sport with 41,271,414 people being recorded as attending games throughout the 1948-49 season19, and worker shortage problems occurring when big matches were staged. Football was therefore seen as a tool “cutting across barriers of class, race and to a certain extent, sex, thus acting as a unifying force in respect of its universal appeal”20. The sport’s popularity ensured that media coverage such as that in newspapers and live radio coverage began to grow which helped secure profits of several thousands of pounds for top clubs e.g. Liverpool £17,000. But the purpose of this coverage was recognition of the need to cover the people’s game for the sake of the fans

17 Peter Allchin: “Live television coverage of the Football League” Thesis available from Templeman library basement, University of Kent, Canterbury p3 18 More detail available in Peter Allchin: thesis Ibid p5 19 Figures and information taken from Peter Allchin thesis Ibid p15 20 Peter Allchin: thesis Ibid p25

8/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport and also for clubs to improve the safety of stadia, as shown by the low match ticket prices which were originally designed merely to cover costs.

Therefore football IPR’s are clearly so valuable due to the popularity from the fans which exists because of their love of the game and the unique social interaction that supporting one’s local clubs ensures. It is therefore not appropriate to profit from this popularity and local heritage. The history of football league clubs lies within the public domain as local people created it for non-financial purposes, for their piers, and access should therefore not be over restrictive. Unfortunately the current IP regime merely recognises football’s business function and it therefore facilitates club owners effectively stealing the authors

(the locals) creation and only allowing access in exchange for a fee, which is exploitation, and against the intentions and justifications of Copyright law.

Justifications of IP (in a Copyright context)

When we examine the justifications of Copyright protection and contrast them with how

IPR’s are imposed within football then it shows that such an approach is inappropriate within the sport.

(i) ‘The Labour theory’

Copyright justifies itself sufficiently in a moral John Lockean approach, being that those who are the authors (those who sow) should reap the rewards of their labour. However, in a football context the founding members of the clubs in question are the local working class people who the owners and authorities now seek to exploit. Most of the current top football league clubs originate from industrial workingmen, Church groups and schools21, 21 See James Walvin: The People’s game: a social history of British football (Allen Lane, 1975) p57- 60 for evidence of several other clubs origins and an overview of the social reasoning behind this etc.

9/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport as mentioned above. In fact even Manchester United, this countries current biggest club were established in 1880 as Newton Heath team by workmen of the Lancashire and

Yorkshire Railway Company. Football clubs history lies within the public domain, as it was locals who established them for the benefit of the local community for generations to come and the descendents of the industrial workers are generally the current locals.

Therefore the Glazier family (owners of Manchester United) can hardly be seen as

‘authors’ of the club22, or even the current games that are taking place as they merely took over a business and generally allow it to run in the state it has always been. It is therefore not appropriate under such a justification, that owners of clubs and the football authorities should be given such strong IPR’s over a publicly created sport and clubs merely because they invested money in a business sense23. One should not be able to buy the Copyright to a community’s own historical creation and excessively charge for access to all parts of it.

Having established that “Football was the game of the common people”24 created by the common people and happily sitting within the public domain, then the privatisation of anything with financial worth within football cannot be justified under the labour theory especially as the prices set effectively put football out of the reach of the common person25.

It would seem that businessmen have effectively purchased the authorship (including moral rights) of the league clubs and were allowed to do so for the so-called benefit of the game but at the expense of the fan.

22 In a work originating from the author sense, University of London Press Ltd. V University Tutorial Press [1916] 2 Ch 601 at 608 23 In the Glazier example this investment was clearly against the wishes of everyone involved or interested in the club or football as shown by fans setting up another club http://www.fc-utd.co.uk/ 24 James Walvin: The People’s game: a social history of British football (Allen Lane, 1975) p62 25 Take for example Chelsea who charge over £800 for an average home season ticket http://www.chelseafc.com/article.asp?article=103487&Title=Season+Tickets&lid=Navigation+- +Tickets&sub=Season+Tickets&nav=&sublid=

(ii) The ‘Law & Economics’ justification

This justification is based around the concept of law providing an incentive to create by giving legal protection to authors who otherwise would not be protected from ‘free riders’ copying and distributing their work without having to invest any creative mental labour.

This has become the focal point of IP regulation in recent years and has therefore widened the scope IPR’s dramatically as to cover almost any material capable of making a profit. This definitely holds some basic merit in most commercial situations such as the production of materials that are easily copied i.e. DVDs. As if no protection laws were in place then there would be no incentive for companies to invest in their production. IP protection was therefore described as “a necessary evil – a restriction on the free flow of information to the minimum extent necessary to encourage needed investment in innovation”26. However, as will be shown through the examples below, IPR’s in sport are following the general business trend of being implemented far beyond the ‘minimum’ extent necessary to encourage investment.

In fact football clubs are being given the same broad powers over their IPR’s as any other business which has therefore allowed the protection of almost every sport related aspect.

The investment in sport has had several positive effects for clubs, however it was no necessary to privatise such vast areas of the game to receive these ends. A balanced system would still provide financial rewards to encourage business investment whilst also maintaining the public aspect of the sport. However, a spiral effect has been created where clubs claim they need to take such an approach as to financially survive and pay their playing staff their lucrative salaries. It is quite obvious that player’s demands are 26 “Romantic Authorship and the Rhetoric of Property” – Lemley, Mark – 75 Texas Law Review 871 (1997)

11/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport only so high because of the income of the clubs and if a balanced system were introduced across the board then wages and transfer fees would decrease in line.

This ownership instead of authorship reliance has become common within Copyright law protection and is a practical necessity in standard industries. However, to allow football clubs concept of ownership to be the same as a standard business is ignoring it public domain origins, its distinctive character and differing aims, as well as its distinct social significance to the fans.

Those who established our league clubs did not receive an extra financial incentive; their motivation was to create a leisure activity of entertainment for local workers and the public to enjoy. This purpose of football is still the great selling point, which makes football such a success, and it is therefore vital that this working class public domain access remains the focus of football.

Vulnerability of fans

It may be a necessary evil for football clubs to be ran as businesses, but this does not mean that the IPR’s given to a standard business should be awarded in the same vein as this would fail to recognise the significant differences between a normal business enterprise and a sporting club. For instance, most businesses run purely for financial gain and their existence has very little impact upon the lives of anyone who does not work for the company. Its customers have no sense of loyalty or passion towards the company and merely purchase a service or product in a standard transactional sense. This standard relationship allows rational business logic to operate, as customers will look for a good deal and shop around, and this competition will police the companies within the market to be competitive. However, football fans are the customers of football clubs and a very

12/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport different relationship between the customer and the company (club) exists. Many of the customers have an extreme sense of loyalty, pride and passion in regards to the company, which has been developed and nurtured from an early age27. Despite fans often having no involvement in the clubs success apart from purchasing products such as match tickets and merchandise, they see the clubs successes as a personal success in a way a customer of Nike would never experience. This is evidenced on a weekly basis when fans ring up radio phone-in shows and declare themselves delighted with ‘their’ success.

This ‘unique loyalty’ effectively guarantees customers, which is a power relationship that a standard business would not experience28. Even small clubs and their sponsors (whether consumer aimed or not) are openly aware of this unique aspect, as shown when Group

Vice President of GAC Logistics said their £1million per annum sponsorship of Crystal

Palace F.C creates “the opportunity to take advantage of football's ability to build a powerful emotional connection with its ardent following"29.

For large proportions of a clubs customer pool it matters very little what quality product/service is provided especially in regards to off the field aspects such as ticket prices and match day food quality. Most of their fan bases are loyal to the extreme and therefore there is no competitive drive for the clubs to strive to improve standards in these areas, as most of their fans will remain. Within limits this allows clubs to provide the cheapest quality product for them and charge a high amount, which is a luxury that would never be experienced in any other competitive market. This fan loyalty can be contrasted with an addiction as it holds as little logic and ensures the same vulnerability. This is 27 http://football.guardian.co.uk/blueprint/story/0,,1573701,00.html “Football fans are idiots” article addresses and touches upon many supporter loyalty issues 28 For instance 15,000 Newcastle United F.C fans turned up to the stadium on a non-match day for the signing of Michael Owen in the hope he would bring them success. I cannot see 20,000 of Nike’s customers turning up to their HQ on the singing up of a new chief executive expected to bring in similar success. http://www.nufc.com/html/owen-signs.html 29 http://www.cpfc.premiumtv.co.uk/page/News/NewsDetail/0,,10323~802372,00.html of course one must be registered to access information through the official site – a further example of a lost marketing opportunity

13/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport therefore a good reason why it is inappropriate to allow clubs and their financially driven owners to manipulate their vulnerable customers through the excessive use of IPR’s such as Copyright.

Success relies upon access

The national government have also recognised football’s role in society and they continue in actively promoting participation in the sport30 as they strive for sporting success as a country. However, a rich public domain must continue within sport as sporting heroes provide an incentive to young people and with Copyright protection being life plus seventy years this is not possible. Public domain access provides young sports persons someone to idolise and see as a role model towards future success whilst also being able to learn from watching them participate. Currently access require considerable expense as to see significant footage of a footballer one must either subscribe to a premium satellite service such as Sky Sports or purchase VCR or DVD footage at a price the clubs set.

Specific examples of the Copyright conflicts

Having made some general points about the inappropriateness of standard IPR protection within football, I shall now outlay some specific current conflicts that are occurring due to the current system. These shall evidence the privatisation of football and show that most of the justifications of IP law are not present in a sporting context that the vulnerability of fans is being dangerously exploited and that in allowing to do this no purpose is served and market opportunities are being ignored.

30 http://www.pm.gov.uk/output/Page842.asp

(a) Fixture List conflict

The Football League (FL) is a company in itself31, with a list of regulations that are agreed to by all League clubs if they wish to have membership and receive the benefits of this e.g. taking part in the competitions and financial distributions from the FL. By virtue of Regulation 69, the FL’s board is empowered to enter into any commercial contract considered to be in ‘the best interests’ of the FL and the Clubs. This gives great power to the FL as it enables them to make decisions in all aspects from merchandising to television rights, which under Regulation 67 the clubs are restricted from entering into without the written consent of the FL32. This scheme therefore gives the football league dominant power over the clubs as well as the right to act as an agent in exploiting the

IPR’s for its own gain whilst also giving financial distributions to the member clubs.

Despite a European ruling to the contrary, the FL have managed to continue to claim copyright in the fixture lists they compile ever since the case of Football League Ltd v.

Littlewoods Pools Ltd33 where they successfully sued for the printing of fixtures on pools coupons. Originally, when clubs where charging so little for admission to games and pools companies were making a fortune, the case seemed to allow clubs to share the profits of their success34.

The FL has subsequently set-up a company called DataCo to enforce the licensing of fixture lists and player stats in exchange for substantial fees. This company has striven to enforce their IP right of Copyright against anyone wishing to publish fixtures whether that be profit making newspapers or non-profit fanzine websites and they have moved

31 Set-up as a membership organisation but incorporated as a company under the Companies Acts. Clubs then hold one ordinary share within the company, each which has a nominal value of 5pence. The share carries with it the membership privileges. 32 Information attained via e-mail correspondence with the Football League, available on request 33 [1959] Ch 637 34 Story and facts found at http://football.guardian.co.uk/comment/story/0,,1671699,00.html

15/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport with the times by ensuring mobile phone and other new media devices are subject to the same charges. The company only permit editorial pieces mentioning a forthcoming game

(presumably as it would constitute the defence of “fair dealing”) but more detail than this such as dates and venues are not permitted. A deal was struck whereby each club could nominate one fanzine each who would merely have to pay a £1 fee. However, many clubs have several fanzines or websites and official affiliation with a club would also detriment the creditability of such an independent source.

DataCo have enforced the IP right against all parties including recently a small non-profit

Watford F.C fans website35 who had published fixtures. DataCo’s commercial bullying approach resulted in the suspension of the fans website after only one low detailed e-mail correspondence of warning. This website represented several fans free work, creativity and endeavour yet DataCo had no qualms in enforcing their rights against the website as licence paying profit websites deem fans sites with fixture information a source of competition.

(b) Photographs

“ 14. No person may bring into the Ground or use within the Ground any equipment, which is capable of recording or transmitting (by digital or other means) any audio, visual or audio-visual material or any information or data in relation to the Match or the

Ground. Copyright in any unauthorised recording or transmission is assigned (by way of present assignment of future copyright pursuant to section 91 of the Copyright, Designs and Patents Act 1988) to the Club.”36

35 http://www.bsad.org/0506/reports/fixtures_letter.html evidences the correspondence between the website and DataCo 36 Taken from Arsenal F.C’s ground regulations www.arsenal.com/

This is the ground regulation that the FL demand members impose and it shows the extremely restrictive position that is created through the use of Copyright within sport.

Copyright law allows this protection due to commercial concerns, and considering football clubs are recognised business entities they have the right to protection like any other company.

If this is fully imposed within football (which is the case is many league grounds) then this effectively restricts a young boy taking a photograph of himself and his father at their first football game and no such alternatives are available.

Beyond this example, many fans appreciate viewing pictures from a game to remind them of their day out, the atmosphere and the stadium they visited and create files of all the arenas they have visited. Other fans enjoying viewing these personal accounts and several galleries are created within unofficial websites and on the discussion pages.

However, such uses are seen as infringing and in competition with licensed photographers37 images despite their very different nature and quality and the negative effect on fan interaction.

Copyright law facilities clubs to enforce this right even against non-profit fan websites such as the recent examples of readytogo.net38 and hqfl.dk39 where threatening legal action correspondence ensured that useful resources were restricted. Again, this serves no justifiable purpose other than excessive greed, as the authorities charge licence fees to

37 Such as www.gettyimages.com/ who produce professional pictures from almost every league football match 38 http://www.readytogo.net/smb/showthread.php?t=41467 has the site administrator explaining pictures need to be taken down as are in breach of copyright 39 http://www.hqfl.dk/ under FAQ section it states that the FA have threatened expensive legal action which the website cannot afford to fight in regards to the publication of official club badges protected by in this case not by copyright but by trademark.

17/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport professional photographers and therefore have to ensure they implement the privatisation of this material against all parties.

(c) Commentary / Goal replays

The same restriction on recording equipment within a ground and the declaration that the club and the FL own all aspects of the match day experience ensures another avenue for financial gain. Football has recently expanded to realise the opportunities within the

Internet arena and licensed exclusive IPR’s to a company called Premium Television 40.

The company boasts of how it controls over 80% of football league clubs websites and promotes clubs to exploit and control their new media rights. Before this system was set- up, several services ran free of charge, which enabled fans to listen to live commentary of the games from around the world whilst having a choice of what service to use. Now one must subscribe for anything between £20-£35 each season per club and competition commentary such as BBC local radio stations are not allowed to provide their service online.

All other information such as video replays of goals is restricted through copyright and therefore one must subscribe to view goals, which was not the case just a few years ago.

This means that if a fan attended the game but missed a goal, the he must pay for the service to watch the goal or catch it on the small slots provided by the television channels who have the rights to broadcast.

Not only is the official service another fan expense, it is also of unsatisfactory quality 41 and further privatises any interaction with ones club. However, as the clubs have the

40 http://www.premiumtv.co.uk/ 41 As discussed on fans forums such as http://www.cpfc.org/forums/showthread.php?s=&threadid= 123056&highlight=Palace+World

18/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport monopoly on the rights and no competition like other businesses, then they can charge what they like in spite of quality as fans special loyalty means most will pay especially if based overseas. Again, the reason clubs decided to control their own IPR’s for this material was purely a financial decision.

(d) Broadcasting & the Internet

There was no live league football on TV in England until 1983. Between 1983 and 1992 a relatively small number of games were sold by the Football League to the two main terrestrial channels, ITV and BBC. The last such contract, between 1988 and 1992, exclusively with ITV, was to show 18 games per season for £11m per season. Then came the Premier League breakaway, the only purpose of which was to give the top division control of the broadcast rights, which were sold to the new satellite TV provider, Sky 42.

This ensured that broadcasting live matches became very big business and the current four-year contract with BSkyB is worth £1billion43. Sky is not a terrestrial channel and they effectively have a monopoly44 on live league football within the UK due to

Copyright legislation. The Premier League has retained Copyright for games scheduled at 3pm on a Saturday as a ‘closed’ time as not to affect attendance revenues. The league have forcefully been prosecuting publicans who purchase satellite dishes so they can show television channels from abroad who do have the rights to broadcast these live games45 as they believe they wish to promote “participation and attendance”. The intended purpose of the closed time period is in theory to ensure fans continue to attend matches rather than merely watch them on television. However, the top chosen games are merely moved to either a 1p.m or 5.15p.m kick off with consistently no regard to the

42 www.bigsoccer.com/sky 43 http://news.bbc.co.uk/1/hi/business/4334784.stm 44 One recently recognised and acted upon by the EU http://www.sky.com/skynews/article/0,,15410- 1202975,00.html 45 http://football.guardian.co.uk/News_Story/0,,1075531,00.html

19/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport attending fan46 as fixtures are notoriously moved for the benefit of the broadcasters as this brings in the most significant fee47.

The sheer fact that television rights are even sold to Sky in such a fashion does not encourage participation and attendance as Sky are not looking merely to offset the fee they pay for the rights, they are seeking big personal profits. Football is therefore no longer the people’s game if it is not significantly accessible without a substantial fee as this very much privatises what was originally in the public domain. Participation is sport is encouraged through interaction and as discussed earlier an opportunity to witness sporting idols. The league authorities chose to sell their television rights to Sky and retain such little control and as a consequence do not have the power to significantly promote participation and attendance. However, they have allowed more and more games to be sold to non-terrestrial channels48 and in the last few years even England international games have taken away from terrestrial television, something that was always feared.

This is clearly further evidencing the trend of using Copyright to take football further away from the working class public domain origins and towards making it only available for those who either can pay or will despite the financial burden, pay due to their unique loyalty. Fans are fighting against this broadcasting system as evidenced by the existence of several websites offering software and live links so fans can watch top games for free over the internet49.

Bad market sense

46 http://soccernet.espn.go.com/news/story?id=353445&cc=5739&campaign=rss&source=soccernet evidences how fixture list compilations lack skill and are scheduled for the television viewing audience and not out of practical considerations for the attending fan 47 Note there are limited exceptions such as “beam-backs” and also Newcastle F.C. who have managed to negotiate an agreement with the FL http://www.nufc.premiumtv.co.uk/page/ShearerDetail/0,,10278~766857,00.html 48 Such as Prem+ which is Sky owned but requires a further subscription fee https://czone.sky.com/customerzone/article/0,2129,1142973,00.html 49 http://www.football4less.com/streams/

The focus upon the Law and economics justification of IPR’s allows Football clubs to state that to be competitive they must compete financially with other clubs and IP’s strong and broad protection has allowed them to raise significant funds especially through the use of Copyright. This has led to overprotection merely on then justification of financial gain at the expense of the playing fan and beyond the level needed to benefit the game.

However, I believe this is a shortsighted view that has been taken by the football clubs and the league authorities, especially in respect of the smaller clubs. I believe that the use of IPR’s such as Copyright within sport is effectively ensuring a monopoly on success on the pitch due to the sheer business nature that has developed and the power of top clubs50.

I believe “the protection of ideas by means of property seems to be unreasonable and our system of intellectual property laws in general may be subject to redefinition or even extinction”51 given the development of technology which opens several business opportunities. If fans were able to access all kinds of information from their unofficial fan site then such access ensures benefits to the club themselves. It ensures interaction with the club free of charge, which is free advertising in the same way that newspaper coverage drums up beneficial interest. In regards to the fixture list debate described above, the more places a fixture list is published, the more fans see it and are therefore likely to attend games. The more interaction in regards to a club, the more personal attachment one has with the club52. All of this will increase ones ticket sales, merchandise sales and overall fan base, leading to more all sorts of beneficial opportunities such as more lucrative sponsorship deals. I therefore consider this a very

50 As further evidenced by the G14 group http://www.g14.com/G14accueil/index.asp, Jose Mourinho’s recent comments http://sports.espn.go.com/espn/wire?section=soccer&id=2366850 and Simon Jordan (Crystal Palace F.C’s Owner) http://football.guardian.co.uk/Columnists/Column/0,,1641364,00.html 51 “Objects of Property and Subjects of Politics: Intellecual Property Laws and Democratic Dialogue”, Romsemary Coombes 69 Texas Law Review 1853 (1991) 52 For example a Crystal Palace’s unofficial site is www.cpfc.org/ and has 13,000 members registered to its vibrant website and even organises a Christmas party etc. Such interaction between all the fans and the club has allowed foreign based fans to stay in touch with events, and new fans to develop, leading to higher merchandise sales etc.

21/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport naive and narrow FL approach, which misses out many free marketing opportunities and fails in its declaration to enter into contracts of benefit to its members. The FL are thinking very narrowly and short term if they continue to agree to invoke such rights for what can only be a small income for most, even with the added sponsor fees they receive through hits on their official website when fans are forced to check match details via this avenue. The FL could either work towards a scheme that allows non-profit websites to be recognised as exceptions or allow all sources to publish its fixtures in recognition of the benefits to its member clubs.

I argue that despite DataCo equally distributing the licence fees received, smaller clubs lose out, as they cannot decide what works best for their individual club. Smaller clubs do not sell out their grounds every week, cannot rely on media coverage to assist merchandise sales and therefore cannot use the fixtures lists of their club to grow which effectively grants a monopoly on success as well as fixture lists.

Conclusion and idea for the future

I submit that the current role of IPR’s within sport should be restricted as to provide a balance between the fans that wish to access it. I believe that it is vital that football is recognised as more than a business, and as a activity belonging to the heritage of our country. The origins of football and the football league clubs lie rich within the public domain, therefore restricted access to the materials is in truth unjustifiable beyond a weak economical argument. Sporting material is vital for a community and its residents whilst also being vital as to help develop the sports stars of tomorrow.

Recently the discussed social aspects of football were emphasised by the 2000 European

Union Nice Declaration, and the governing body of football UEFA have been ordered to

22/27 LW556 Intellectual Property Law Dissertation Stefan Hagan (smh34) 2005/06 Copyright in Sport act. The declaration called upon those in power to ensure that sports social, educational and cultural functions are respected. It is my belief that this action should come in the form of limits on the commercialism of the game, and a start could be through the use of

UEFA or FIFA IPR regulations (especially those relating to Copyright). If governing bodies such as UEFA were to implement more balanced regulations across the football world with a sufficient notice period, then clubs could not claim their particular country would be unequally affected. Players’ wages would therefore have to decrease equally, and clubs would focus on income through non-prohibited avenues, which may require price caps as to ensure clubs were did not merely offset IP losses. I suggest that this would be in the best interests of the game on a long-term basis53.

53 http://www.fc-utd.co.uk/feature.php?feature_id=43 this outlays Sepp Blatter, the head of UEFA’s views on issues of commercialisation and an idea for the future where he disagrees with my recommended solution

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