In this article, Renuka Sara Abraham, a fifth-year law student at Christ University, Bangalore, describes in detail the application of Intellectual Property Rights or IPR in Sports.
“Sport is where an entire life can be compressed into a few hours, where the emotions of a lifetime can be felt on an acre or two of ground, where a person can suffer and die and rise again on six miles of trails through a New York City park. Sport is a theatre where a sinner can turn saint and a common man become an uncommon hero, where the past and the future can fuse with the present. Sport is singularly able to give us peak experiences where we feel completely one with the world and transcend all conflicts as we finally become our own potential.”
~George A. Sheehan
INTRODUCTION TO SPORTS:
Sport is a truly global phenomenon. As a social security, whether it is regarding participating as a recreational pastime, competitive playing at amateur levels, the elite and mainly professional level or in terms of spectating, sport assumes immense cultural significance. Today, sports have achieved so much essence that it is a multi-million dollar industry. Both men and women have to perform under astounding circumstances, and astonishing pressure and often would have to sacrifice other areas of their life.
Sports have become a significant part of any society. Sports go beyond religion, caste and creed.
The American Lawyer Howard Cosell: “The importance that our society attaches to sports is incredible. After all, is football a game or a religion? The people of this country have allowed sports to get completely out of hand.”
INTRODUCTION TO IPR:
Intellectual Property Rights are the protection of ideas. It protects genuine business assets. All human accomplishments have its origin in an idea. For the invention of any type of endeavour an idea is involved, be it the name of a company, creation of work or even in the use of an innovative sporting technique or piece of equipment.
An idea is created by labour and hard work; hence the need for its protection arises. The man has also been given imagination and creativity. When a person goes public with his work, there is no recourse which would prevent others from using and misusing the work, without paying the creator or even offering proper acknowledgement.
Intellectual property rights have been accepted worldwide. It provides an incentive to the individual for new creation. It also ensures that there is a material reward for the work put in. Intellectual Property Rights protect the expression of an idea and not the idea itself. Locke’s natural rights theory explains this. Locke discussed the Triadic relationship between the Author, Work and the Public. He states that with the help of labour of one’s body, with the work of his hand added to something already present in nature would become his own property.
Intellectual property rights are very valuable to those involved in sports for livelihood. An individual’s intellectual property right is his prime asset. Providing such protection allows him to increase his market and amplify earnings. Such rights can be in different forms, such as protection of Sporting slogans and mottoes, Sporting Techniques, Sports Clubs Names, etc. Often the validity of protection under IPR is questioned since the world is now moving towards free movement of goods and services and providing protection enforces trade barriers, yet Governments do allow IPR protection since it allows people to come up with new ideas and innovations. Unless an idea is adequately protected in its early stages, it is unlikely that it would be a success in its maturity stage for its owner.
Intellectual Property Rights or IPR in Sports:
Granting intellectual property rights to sports move is definitely a disputed topic. Sporting movements do not fall under the traditional topics under intellectual property laws, and thus even today, lacuna exists. IPR often excludes from its ambit any act which is caused to be done by the human body, such as surgical moves, but sporting movements are much more than that. Many foreign authors have extensively written about protection of sports moves under the ambit of IPR, but literature lacks in India relating to the same.
Sports move is a combination of art, skill and judgment, which gives it’s inventor/creator an added advantage over their opponents. This move often decides the fate of the game and hence providing special protection to the so-called “signature moves” becomes a necessity.
Wikipedia explains “signature moves” as a move or ability that is almost analogous to the person or character that uses it and may imply that the move is usually a staple of the user’s repertoire, and on most occasions was invented by the performer. Hence, sports moves do fall under the ambit of an idea of expression.
Copyright In The International Dimension:
In simple words, Copyright protection is to be available to those ideas that are creative in nature. Copyright is as exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film or record literary, artistic or musical material.
It is also a bundle of intangible rights granted by a statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale. The Oxford English Dictionary defines Copyright as “The exclusive right given by the law for certain term of years to an author, composer, etc. ( or his assignee) to print, publish and sell copies of his original work.”
All ideas are public goods, but copyrights are the closest to being a public good. Since the problem of “free riding” exists, if adequate copyright protection is not awarded, then people may use it for their own benefit without paying the original owner.
A public good has the characteristic of being non-rival and non-excludable. It is non-rivalrous because even if one person uses the information, the same is not diminished to the benefit of another and it is non-excludable because simultaneous consumption is allowed. Sports moves are non-rival because if one athlete uses a particular move, then the benefit to those already using the move is not diminished, likewise sports moves are also non-excludable, which implies that once athlete has used the move, all other athletes cannot be prevented from benefitting from the move, unless it is explicitly provided.
Berne Convention for the Protection of Literary and Artistic Works, 1886: The Berne Convention deals with the protection of works and the rights of their authors. It is based on three basic principles – national treatment, automatic protection and independence of protection.
Universal Copyright Convention:
The UCC (1952) was adopted at Geneva by an international conference convened under the auspices of UNESCO. Article 4 of the UCC accommodated a general least length of time of just a quarter century, and of ten years for photographic works and works of connected craftsmanship. A transitional procurement even permitted any Contracting State which, at the date of passage into the power of the UCC in that state, accommodated certain classes of works.
The span must be processed after the primary distribution of the work. Correspondence was presented, given the assorted qualities of national laws on the term.
The rule of national treatment was drafted in a somewhat distinctive manner from that under the Berne Convention. The UCC in the adaptation of 1952 likewise contained a meaning of “production”, a tenet on application in time, last and regulatory provisions and structure procurements – specifically the Berne shield condition.
WIPO Performances and Phonograms Treaty:
The WIPO Performances and Phonograms Treaty (WPPT) deals with the rights of two kinds of beneficiaries, particularly in the digital environment:
(i) performers (actors, singers, musicians, etc.); and
(ii) producers of phonograms (persons or legal entities that take the initiative and have the responsibility for the fixation of sounds).
As far as performers are concerned, the Treaty grants performers economic rights in their performances fixed in phonograms (not in audiovisual fixations, such as motion pictures): (i) the right of reproduction;(ii) the right of distribution; (iii) the right of rental; and (iv) the right of making available.
As to unfixed (live) performances, the Treaty grants performers: (i) the right of broadcasting (except in the case of rebroadcasting); (ii) the right of communication to the public (except where the performance is a broadcast performance); and (iii) the right of fixation.The Treaty also grants performers moral rights, that is, the right to claim to be identified as the performer and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer’s reputation.
(i) The right of broadcasting (except in the case of rebroadcasting); (ii) the right of communication to the public; and (iii) the right of fixation. The Treaty also grants performers moral rights, that is, the right to claim to be identified as the performer and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer’s reputation.
In the US, the Federal law (i.e.) the Copyright Act of 1976 states that four conditions must be met in order to claim for copyright protection, namely:
1) The work must be fixed in a tangible form
2) The work must be original
3) The work must be creative and
4) The work must be within the subject matter of Copyright.
The work must be fixed in a tangible form means that the work must be in permanent form. In the United States, the aspect of fixed in a tangible form is a necessity. For example in the case of Merchandising Corporation v Harpbond, the Court held that face tattoos were not in a fixed tangible form and so could not claim copyright protection. Hence, even sports moves would not fall within the ambit of a work in a fixed, tangible form and so cannot claim copyright protection.
For a work to be original, it does not mean that it must be new. It simply means that the work must be independently created. This was held in the case of Feist Publications v. Rural Telephone Services Company. The US SCin the same case further held that originality refers to the source of the work and the “Sweat of the brow”theory, that copyright was a reward for hard work. Almost all the games have been played for many years, and standard rules and bye-rules are laid down which is well-known, and so when an athlete is finding his own move to play the game differently, which in turn would give him an advantage, his move should be protected.
Creativity is the mental characteristic that allows a person to think outside the box, which results in innovative or different approaches to a particular task. This is a subjective criterion, because what is creative to one person may not necessarily be creative to another person. The court in the case of Bait. Orioles, Inc. v. Major League Baseball Players Association has held that a “modicum of creativity” is required for work to be copyrightable. As Justice Holmes declared in the Bleistein case when holding a circus poster to be copyrightable, “[If certain works] command the interest of any public, they have a commercial value it would be bold to say that they have not an aesthetic and educational value and the taste of any public is not to be treated with contempt.
By Holmes, this high esteem is the thing that makes the work “innovative” for purposes of copyright. It is promptly evident that sports moves “order the enthusiasm” of in any event the games devotee bit of the general population. Indeed, the playing of a sport not just the televising of it has been found to be the proper subject of copyright protection in the Baltimore Orioles decision.
Sports moves can be a category of “choreography”. Choreographic works have been expressly copyrightable under the Federal Copyright Law. The term “Choreographic work” has not been defined in the stature and hence the meaning is not clear. There is also no evidence that the US Congress wanted to limit its ambit. The creation of the new category of “choreographic work” in the law means that the Congress wanted to create a broader class of protection.
Wikipedia explains “Choreography” as the art or practice of designing sequences or movements of physical bodies in which motion, form, or both are specified.
Martha Traylor, a legal commentator, has stated that dance is a “planned movement, set into a time frame, for the benefit and enjoyment of the passive observer.” This would mean that dance can include everything from circus productions and stage movements of actors to figure skating. The element of any choreographic routine is human movement.
Most routine- oriented sports/ athletic performances such as figure skating and gymnastics use a set of moves that was pre-planned. The Oxford Dictionary defines dance as a “performance”. The differentiating line between sports and dance is blurred. In its entirety a game is a performance, hence a sports move can also be equated to choreography, which is protected in the US.
In the UK, according to S.1(1) of the UK Copyright Designs and Patents Act, 1988 (CDPA), copyright subsists in:
Original literary, dramatic, musical or artistic works;
For Copyright to subsist in literary, dramatic, musical and artistic works, they must be “original”.
In Ladbroke( Football) Ltd. vs. William Hill (Football) Ltd, the Court held that the value of a work as a whole must be assessed when the claim to originality is being assessed. The Court also held that the word “original” requires only that “the work should not be copied but should originate from the author”. In another case of Interlego AG v. Tyco Industries Inc., criteria the Court stated that to claim copyright protection, an author needs to show that he has used his own skill and judgment to produce the work. An idea is not protected, but an expression of an idea is protected.
Sports moves specifically do not meet criteria. They are “original” since most moves are invented by the author himself and it is an expression of an idea, but still sports moves neither fall under the category of an artistic, dramatic, musical or literary work. Hence, such sports persons can claim under the ambit of “Performers Rights.”
Performers were not well protected earlier in the UK. But with the passing of the Copyright Designs and Patents Act, 1988 this position has changed. A “performer” is not defined under the CDPA, but Section 180(2) defines “performance” to mean a dramatic performance( including a dance or mime), a musical one, reading or recitation of a literary work or a performance of a variety act or any similar presentation. Hence, there are two categories of performers rights- performers non-property rights and performers property rights. Sports persons would fall more under the category of non-property rights and this would include the right:
• Not to be recorded live (except for private use).
• Not to be broadcast live.
• Not to be recorded off a live broadcast (except for private use).
• The so-called “use it or lose it” right.
• The right to supplementary annual remuneration.
The big question arises as to whether sports persons are “performers” under the ambit of “performers rights”. Even though a performer is not defined under the Act, the performance definition can even cover “sports persons”. Applying the maxim “ejusdem generis” while interpreting Section 180(2) “a performance of a variety act or any similar presentation” is wide enough to even include sports persons. Such sports persons would have both the protection of economic rights, as well as moral rights. Economic rights give you the right to earn money from your creative work. You can give or sell your economic rights to another person or organisation.Moral rights help protect your reputation. You can’t give away or sell your moral rights.
POSITION IN INDIA:
In India, Sports moves cannot be protected under the Copyright Act as a primary work, like in UK, but it can be protected as a sui generis right or a neighbouring right under the Copyright Act. This is done through the concept of “performers rights”. Before the 1994 Amendment Act to the Copyright Act, no such protection to performers was awarded. The 1994 Amendment Act added Section 2 (q), Section 2(qq), Section 38 and Section 39 and which dealt with Performers Rights. Section 2(q) defined “performance” to mean any visual or acoustic presentation made live by one or more performers.
Section 2(qq) defined “performer” to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. Sports persons are not mentioned specifically. The 2012 Amendment Act added Section 38 A and Section 38 B, which deals exclusively with the Perfumers’ Economic and Moral rights.
Since, Sports persons are not explicitly mentioned, there arise lacunae as to whether they are in fact “performers” and even the judiciary has also not cleared this ambiguity. Section 2(qq) is an inclusive definition, meaning that when used, enlarges the meaning of the word defined so as to comprehend not only such things given, but may include those things which the clause declares that they shall include. An example of this is sports persons.
Such persons are not explicitly given under the above definition but may be interpreted into it by following the rule of “ejusdem generis”. When particular words pertaining to a class, category, or genus are followed by general words, the general words are construed as limited to things if the same kind as those specified. The legislature uses general terms to denote such objects.
Who is a performer? In simple terms, a performer is somebody who entertains a crowd. The Oxford English Dictionary defines “performer” as a person who entertains an audience. Sports definitely do fit into this definition. In the maverick blog online the author wrote as follows: “We in the sports business don’t sell the game, we sell unique, emotional experiences. We are not in the business of selling basketball. We are in the business of selling fun and unique experiences. I say it to our people at the Mavs at all time, I want a Mavs game to be more like a great wedding than anything else.” This shows how important sports have become in the life of an individual.
India lacks a law relating to performers rights. Even though the 2012 Amendment Act to the Copyright Act added more rights to performers, they are still inadequately protected. The first issue is the according to Section 38(3) of the Copyright Act, the economic rights of performers are protected only until the work is fixed. Once the performance is fixed, then the performer loses his rights. Secondly, the economic rights of a performer are guaranteed under the Copyright Act, but it cannot be stated that characteristics such as style, persona, etc. come under the ambit of copyrightable work and hence such performers’ cannot be called as “authors” for the purpose of the Act.
These aspects are only ideas and so are excluded from the Act. For example, taking sports moves. They are not copyrightable. Even the Performers Rights under Copyright Act fails to consider rights in performances that are inherently not copyrightable. Hence, for such persons, no protection exists and so is lacunae in the law. With the addition of moral rights such performances can claim protection, but not adequately. The economic and moral rights under the Act does not in any way mention how another performer should not copy the performers right and so is lacunae of the Act.
The same justifications that are used for copyright can be used for performers as well. Sports persons use their skill and judgement to come up win their own “signature moves”. These signature moves give the performers a competitive edge, which may at times decide the fate of the game. If such performers use their labour, then shouldn’t it be protected? Take the example of Dhoni’s helicopter shot. In the online version of Zee tv news of December 11th, 2015, there were allegations that Kevin Pietersen, the English batsman had copied Dhoni’s helicopter shot. This is clearly not a subject matter of “work” under Section 2(y) of the Copyright Act, but this belongs to Dhoni himself. Using Hegel’s Personality Theory, his “Signature move” is an extension of himself and so his consent is required for copying or reproducing the move. In the same interview to zee tv news, Dhoni had stated that he picked up this helicopter shot from playing tennis ball cricket in his hometown and so meets the criteria of being “original”. Newer technology methods have made copying such moves easier and so must be protected.
Another example is chess. Chess uses the mind, rather than a physical move. It uses the skill and judgement part of the mind to come up with a move that may result in his win. Copyrighting a chess move under Section 2(y) of the Copyright Act may not be allowed, but it must be protected under Section 38. The game by itself is an idea, while the moves are a form of expression. Sometimes, it may be that game may be duplicated, either by accident or design and so if copyright is given, then the author of the work can claim infringement. But, with technology and computers, many games are played on a computer-computer basis. Can a computer be held liable for infringement? Obviously, the answer would be in the negative. Then how can infringement be claimed by the author in such circumstances? The answer is still not clear as even the Copyright Act does not give a solution and neither have the Indian Judiciary shed light on this matter.
Even though India has ratified the WIPO Treaty on Performers Rights, there still exists lacunae as to what all performers rights do come under the ambit of S.38 of the Copyright Act. The paper discussed the issues with the right to sports moves, but still, there are many more performers who are not included under the ambit of the Act. The Copyright Act fails to consider intangible rights – distinct mannerism and style with the the right to sports moves. This should be resolved so that more performers would have the incentive to show off their talent and skill.
• Edward Garyson, Sports and the Law, Tottel Publishing Ltd, England,3rd edn,1999
• Gardiner; Simon; James; Mark; O’Leary; John; Welch; Roger; Blackshaw; Ian; Boyes; Simon; Caiger; Andrew
• Mira.T Sundara Rajan, Moral Rights- Principles, Practice and New Technology, Oxford University Press, New Delhi
• Ravi Shinde, Interpretation of Statutes, Asia Law House, Hyderabad
• SPORTS LAW, 3rdedn, 2007, Cavendish publishing
• The Fan Experience at Sporting Events – Never Look Down(available at http://blogmaverick.com/2010/09/10/the-fan-experience-at-sporting-events-never-look-down/)