The final of the Champions League 2022 has established itself over the years as the most important sporting event in Europe and one of the most prominent mass phenomena worldwide. Thus, the audience estimates that we find every year are between 350 and 400 million viewers each year. In this sense, the celebration of the biggest soccer event in the world leads to an increase in illegal retransmissions and the uploading of protected content to different websites.
Analyzing national soccer as an example, in recent years, LaLiga has strengthened its anti-piracy protection tools by developing a series of monitoring software based on artificial intelligence. Thus, in the 2020-21 season alone, LaLiga managed to detect and remove more than one million videos on YouTube and another 455,000 on social networks, as well as 27,300 website addresses, 600 applications with illegal content and 18,600 IPTV - "Internet protocol television", one of the most common forms of piracy today-. This has meant a 19% decrease in pirated soccer content in Spain in 2021 compared to 2020.
All these efforts against piracy have their origin in Royal Decree-Law 5/2015 of April 30, on urgent measures in relation to the commercialization of the exploitation rights of audiovisual content of professional soccer competitions and by which LaLiga is empowered to exploit the commercialization rights of the retransmission of audiovisual content of professional soccer competitions. Prior to this regulation, there was no rule regulating the original acquisition of the audiovisual exploitation rights of sporting events.
So-called soccer television rights are not intellectual property rights.
Despite being subject to exclusive rights, soccer cannot be considered a work protectable by intellectual property nor does it carry any collective management rights of authors, producers or others. However, the broadcasting of matches, i.e. what is commonly known as "television rights", whether free-to-air or through a pay-per-view platform, is subject to exclusive rights of use.
These audiovisual rights are not considered as works under the Intellectual Property Law. In this regard, the doctrine of the CJEU of October 4, 2011 (C-403/08 and C-429/08), Football Association Premier League case, states: "Well, sporting events cannot be regarded as intellectual creations that can be classified as works within the meaning of the Copyright Directive. This is particularly so in the case of soccer matches, which are delimited by rules of the game that leave no room for creative freedom within the meaning of copyright".
The same consideration is offered by the Supreme Court, in STS 3872/2013, which denies that: "the recording of such sporting events constitute works protected by intellectual property since they are not original literary, artistic or scientific creations expressed by any means or support, tangible or intangible, and specifically they are not creations expressed through a series of associated images, with or without incorporated sound, which is how art. 86.1 of the Revised Text of the Intellectual Property Law defines audiovisual works. In principle, the live transmission or recording of a soccer match lacks the minimum originality and creative height necessary to be considered as a "work" protected by intellectual property".
Notwithstanding the fact that a soccer match cannot be considered a work under intellectual property law, broadcasting signals covered by new technologies (digital program recording devices, video-on-demand services or IPTV) will be a different case, since there is general agreement in the sector on the need to ensure the protection of broadcasters against the theft of their signals. However, the member states of the World Intellectual Property Organization (WIPO) have not yet agreed on how to address this task and what rights, if any, should be conferred on such organizations.
For the protection of these exclusive rights over the broadcasting of matches in Spain, a recent court decision of the Commercial Court number 6 of Barcelona has allowed LaLiga and, in this case, Movistar + as the acquirer of the television rights, to reinforce the fight against the illegal broadcasting of matches. It is a ruling that authorizes these entities to request the immediate blocking of web domains through the main Internet access operators in Spain, which will have to prevent access to those domains that lead to pirate content platforms.
This legal support is not only noticeable in national soccer, but also UEFA, organizer of the Champions League, has implemented a series of technological tools to fight against illegal retransmission through IPTV or the hosting of protected content on different platforms. To this end, it has formalized an agreement with Friend MTS, the world's leading provider of content protection services.
We must take into account that carrying out these illegal practices not only causes a harsh penalty to the provider of illegal services, but can also entail negative effects for the consumer of such services, such as identification through the IP address or security dangers through pop-up windows.
Our lawyers, experts in intellectual and industrial property rights, are at your disposal to advise you.
Ingrid González y Pablo Pedraza
Lawyers in the field of Data Protection and Digital Law
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