COPYRIGHT IMPLICATIONS OF SPORTS LIVE STREAMING IN NIGERIA 1
Discussions on the intersection between sports and intellectual property have thickened in the global atmosphere already and the percolating storm of digital technologies and transformation makes this even more evident. The catchphrase 'Reach for Gold' which was the theme of the 2019 World Intellectual Property Day subtly captures this intersection and dredges up some of the possible challenges that could arise therefrom.
Nigeria stands as the most populous black nation and more importantly, one of the most important audience and market for sporting activities. With the progressive evolution of mobile networks, Internet of Things (IoT) and digital technologies generally, the face of sports viewing has transformed significantly. From the exciting invention of bone marrow tests for determining the age of an athlete to live streaming of sporting events online, sports coverage has become more open than ever to global audiences.
One result of this huge appetite for sporting events is the pervasiveness of sports live streaming. But is sport live streaming lawful? If lawful, to what extent does the law permit it? What are the intellectual property law implications of live streaming sporting events? This article provides answers to these questions especially as it relates to the Nigerian legal environment.
What is Sport Live Streaming?
Live Streaming may be defined as "broadcasting in real time".2 In other words, Streaming involves 'any audio or video content delivered over a network based on Internet protocols' and is different from the traditional process downloading.3 It covers online video streaming in real time of actual sporting events and sport-related video gaming.
Live streaming is done in several ways. There is the Peer-to-Peer (P2P) network, where all computers are linked together and can communicate with one another independently without the presence of a third-party server. Also, there is the Unicast Streaming where material saved on a server and made available to users on a website. Most of the unauthorized live streaming of sports is conducted through this technology.4 Other methods include the Set Top Boxes method and the commonest form which involves the use of mobile phone to record sport matches and streaming it live through certain applications.
As a recent example, consider the life video coverage on YouTube of the inaugural English e-sports tournament tagged "ePremier League Invitational" where the-then Wolver Hampton Wanderers forward (now plying his trade with Liverpool FC), Diogo Jota emerged champion of the EA Sports FIFA gaming display.5
Examples of Sport Live Stream Channels include: World Sport Stream, Mobdro, Sybla TV, Sport TV, Olweb TV, et cetera.
What is a "Broadcast"?
An avalanche of dictionary definitions points to the pre-digital age where the circulation or dissemination of audio or visual content was carried out only by radio or television transmissions. For instance, Dictionary.com projects five (5) definitions including "a single radio or television programme", without pointing to the possibility of a broadcast occurring over the internet.6
Meanwhile, with the advent of digital technology and the internet, this definition must reflect other media through which this circulation may be done. The Merriam-Webster English Language Dictionary recognises the digital age possibility of a broadcast happening over the internet.7 Broadcasting may thus, be described as "the distribution of audio or video content to a dispersed audience via any electronic mass communications medium, but typically one using the electromagnetic spectrum (radio waves), in a one-to-many model."8
Broadcast attains its significance relevance in the context of Intellectual Property Law (IPL) since a certain degree of creativity is required to originally create a broadcast of a sporting event, such as, the choice of lens, editing expertise, graphic creativity, and a host of other factors that make a broadcast go outside the ambit of a mere record of event or sporting occurrence.
Nigerian Copyright Implications of Sports Live Streaming
Under Nigerian law, copyright does not inure in an actual sporting event.9 Meanwhile, by section 1(1)(f) of the Nigerian Copyright Act (NCA),10 "Broadcasts" of sporting events are eligible for copyright. By extension, the NCA recognizes copyright in a sound recording. The NCA also confers on the holder of a copyright in a broadcast, the exclusive right to control the doing in Nigeria of any or all the following acts:
- The direct or indirect reproduction, broadcasting, or communication to the public of the whole or substantial part of the broadcast or recording, either in its original form or in any form recognizably derived from the original.
- The distribution to the public for commercial purposes of copies of the broadcast or recording by way of rental, lease, hire, loan, or similar arrangement.11
Thus, copyright in a broadcast includes the exclusive right to control in Nigeria, the recording, re-broadcasting, communication, or commercial distribution of at least a substantial part of the broadcast.12 A copyright owner equally has exclusive right to control the taking of still photographs from such broadcasts.
In essence, two points are crucial here. First, the owner of copyright in any sound recording or broadcast has the exclusive right to determine whether and how such recording is reproduced, broadcast, or communicated. Second, the owner of the copyright may exclusively determine whether and how such recording is distributed to the public for commercial purposes.
A few scenarios can be presented to demonstrate the issues raised by the provisions identified above. For instance, in what situations would an ardent football fan of Manchester United FC lawfully take still photographs of his favourite moments of a football game? Or alternatively, in what situations would such a fan be permitted by law to take a short video of a part of the same football match for trolling on his WhatsApp status update?
Indeed, there should be a limit to the enjoyment of copyright for the owner. Fairness would dictate that the copyright of the owner is not overemphasized as to hinder fair, public interest-based and non-commercial usage by a copyright user. The NCA thus allows for certain specified exceptions which are all subsumed under a broad catchment known as "fair use/dealing". These exceptions may avail a defendant as a defence to a claim for infringement.
The draftsman of the Copyright Act appeared to tactically avoid conferring a definite description to what "fair use" entails. This tactical avoidance is to allow Courts determine each infringement claim on a case-by-case basis, considering the "unruly" nature of this exception.13
By the combined operation of section 7(3) and paragraphs a, h, k and o of the Second Schedule to the NCA, a football fan would be permitted to live stream, take short videos or still photographs of a football match in any of the following situations:
- Fair dealing – for the purposes of research, private use, criticism or review or the reporting of current events;
- For use in an approved educational institution for educational purposes;
- For use by or under the control or direction of the government or other agencies such as public libraries, non-commercial documentation centres, scientific institutions or such other institutions as may be prescribed. For further clarity, the use in this context must be in the public interest, with no revenue derived therefrom and no fee paid or payable by the consuming public; and
- For communication to the public in a place where no fee is charged or paid by the consuming public.
In summary, a live stream would not require the consent of the broadcast channel on the ground of fair dealing, under the following AHKNO circumstances:
A – Fair use situations
H – Educational purposes
K – Public interest use, with no commercial benefit, and no admission fee is charged
N – Broadcast of news
O – Communication of the broadcast to the public in a place where no admission fee is charged
The "Fixed Base" Dichotomy
By section 7(1)(a) of the NCA, copyright in a sport broadcast consists of the exclusive right to control "in Nigeria", the usage of such broadcast. With the emergence and sustained disruption of traditional economic and legal enforcement structures by digital technology, this provision of the NCA brings some tough challenges to mind. To put it in perspective, this issue is analogous to the now virtually extinct "fixed base" dichotomy in the context of Nigerian tax jurisprudence.14 The control existing in copyright over a sport broadcast is said to be "in Nigeria" alone. What is the implication of this considering that sports live stream only exists over the internet?
In view of the impossibility or non-existence of geographical borders on the internet, this control might seem at best, illusory. Secondly, if the "control in Nigeria" provided for in the NCA is interpreted (highly unlikely except by an outright amendment of the NCA) to mean significant residential or economic presence in Nigeria, of the bloggers or administrators of the website engaging in the live stream, then this control becomes very slippery and toothless too. Apart from the fact that website administration is largely informal and untracked in Nigeria (thereby making bloggers and web admins faceless), there is no legally available means of tracking bloggers or web admins who may be streaming from outside Nigeria.
It is submitted that the NCA is reviewed to rhyme with current and constantly changing global technology levels. For example, section 111 of the United States Copyright Act15 specifically provides for limitation of the exclusive rights inherent in a sport broadcast especially as it pertains to transmission by cable. This same provision enabled the establishment of a compulsory licensing system under which cable systems may make secondary transmissions of copyrighted works, including a sport live stream. This license prescribes various conditions under which cable systems may obtain a compulsory license to retransmit copyrighted works, including the filing of statement of account forms.16 The Copyright legal regime of the United States is, by substantial measure, a competent structure to take a clue from in reviewing our copyright laws.
It is also hoped that ongoing negotiations at WIPO to create an international legal framework that adequately and efficiently protects against the piracy of broadcast signals come to fruition. 17
Hyperlinking and Live Streaming on the Internet
The issue of whether hyperlinking should form a basis for copyright protection is of fundamental importance to internet users, especially in this context, lovers of live streamed sporting activities. Live streaming has become a household name and is common among sports enthusiasts, fanatics, and devoted audiences. But these events are sometimes streamed from either some television broadcasting channels, sundry media platforms or from the tracks or fields of play themselves. Hyperlinks are commonly shared on online social media platforms which leads or links the internet public to a sport broadcast protected under copyright laws. Will the sharer of a hyperlink be liable for copyright infringement in this circumstance?
This turf of IPL appears largely uncharted in Nigeria, making a reference to, at least, a foreign jurisdiction very crucial. In 2007, federal courts in the United States of America (US) for the first time addressed the use of hyperlinking as a means of displaying copyrighted works. In the same year, the courts in two cases arrived at different results. First, the US District Court for the Northern Division of Texas in Live Nation Motor Sports Inc v Davis18 held that Robert Davis' use of a hyperlink to live stream video of a motorcycle race owned by Live Nation constitutes an unlawful display and performance of copyrighted material. The Ninth Circuit, on the other hand, found in Perfect 10 Inc v Google Inc et al19 that Google's use of in-line links to infringing images stored on third-party websites does not constitute direct copyright infringement, but could constitute contributory infringement under some circumstances.
In Europe, this aspect of IPL is undergoing development. In the case of GS Media BV v. Sanoma Media Netherlands BV & Ors,20 it was held that the owner of copyright could not succeed in an action to restrain a website operator from posting hyperlinks to their (the copyright owner's) IP asset (broadcast, image, etc.). This decision was reached on this ground:
Hyperlink is an act of communication in a broad sense, i.e. that the communication is “made available to the public”. Hyperlinks to protected works that are freely accessible on a third-party website do not make available those works to a public. Rather, they merely make the finding of those works easier. Following Football Association Premier League Ltd and others v QC Leisure and others; Karen Murphy v Media Protection Services Ltd, a hyperlink would only be an act of communication if the intervention of the hyperlinker is vital or indispensable to access the works.21
In line with the ECJ decision in Nils Svensson & Ors. v. Retriever Sverige AB,22 if a website makes content accessible to a targeted public who could not have accessed it before, then this will be a new public and such use will infringe on copyright. For example, hyperlinks would be directed to a new public if their use circumvented restrictions on the third-party website that had been put in place to protect works and restrict public access (for example, on a subscription-only website) since these users would not have been contemplated by the copyright holders when originally posting their works on the third-party website.
However, if the content was already freely accessible to a public with the authorisation of the copyright owner, then there would be no new access being given to the work and, therefore, no new public.
Sport Live Stream and the Nigerian Broadcasting Code (The Code)
On 11th June 2020, the Nigerian Broadcasting Commission (NBC) released an amendment to the Code, bringing about a few remarkably curious changes to the sports broadcast landscape.
The Code prohibits the exclusivity of sporting rights in Nigeria,23 that is, where a broadcaster obtains a right to broadcast live foreign sports events, the broadcaster cannot enjoy such right exclusively, but must make such right available to other broadcasters. Furthermore, the Code mandates all web and online broadcasters to register with the NBC.24
There has never been a better time than now to intensify attention and consideration of Sport live streaming and its relationship with the Nigerian intellectual property law regime. The National Sports Industry got a fresh national policy document in 2020 marking a paradigm shift in focus in the world of sports, partly in consideration of the huge bounty of finance and economic development on offer in this sector.25 In fact, the price of media sports coverage is projected to surpass revenue made from ticket sales.26
As sport broadcasting continues to pull financial strings in Africa and globally, with year-on-year increase in deals signed to air live broadcasts of sporting events, this is the time to take a closer look at the current laws on copyright and broadcasting with a view to aligning each provision with current technological and global realities. The first port of call would certainly be the amendment of the NCA to correct the fixed-based dichotomy as well as allied issues. Executive orders and regulations are also required from time to time for clarification on what may constitute copyright infringement in the sports broadcast industry.
It is also very important that the Copyright Bill is reviewed on time, paying attention to informed recommendations of stakeholders.27 A new Copyright Act passed with the points highlighted in this article would undoubtedly improve the IPL system especially the effectiveness of Part III that provides for compulsory license for translation and reproduction of literary and artistic works. With live streaming of sport broadcasts permissible only on the ground of obtaining compulsory licenses, the system will be braced up to face challenges that may arise from soon-to-be-witnessed disputes in this area.
1 Olukolade Ehinmosan, Associate, Real Estate and Succession Department, SPA Ajibade & Co, Lagos, Nigeria.
2 Scott Kleinberg, Live Streaming: The Next Big Thing in Social Media, CHI. TRIB. (Apr. 1, 2015), http://www.chicagotribune.com/lifestyles/ct-so-sociallivestreaming-meerkat-periscope-20150401-column.html> accessed on October 23 2019 at 4:13 pm.
3 David Austerberry., Technology of Video and Audio Streaming (Focal Press Imprint, 2002) at 15; Borghi M., 'Chasing Copyright Infringement in the Streaming Landscape' (2011) 43 (3) IIC International Review of Intellectual Property and Competition Law 316-343.
4 Michael J. Mellis., 'Internet Piracy of Live Sports Telecasts' (2008) 18 Marq. Sports L. Rev 259, 260.
5 Premier League, Jota Beats Alexander-Arnold to Win Wolves Inaugural ePL, 25th April 2020, available at < https://www.premierleague.com/news/1658866#:~:text=Diogo%20Jota%20is%20the%20inaugural,Wijnaldum%20headed%20past%20Rui%20Patricio.> last accessed 18th December 2020 at 8:26 am.
7 See Merriam-Webster English Dictionary, Broadcast, available at <https://www.merriam-webster.com/dictionary/broadcast>, accessed 18th December 2020 at 8:39 am.
9 Though there is no decided case directly interpreting the law to this effect, it does not appear that a sporting event would pass the test of what qualifies as an artistic or literary work or performance. In Australia for instance, in the case of Australian Olympic Committee v. Big Fights Inc. (1999) FCA 1042, the Federal Court of Australia held that a sporting event does not amount to a performance deserving of copyright enjoyment. Interestingly, it was the first Australian Court to broadcast live streaming video and audio of a judgment summary over the internet; news item available at < https://www.fedcourt.gov.au/digital-law-library/videos#:~:text=At%209.15%20am%20on%20Tuesday,Inc%20%5B1999%5D%20FCA%201042.> accessed on 18th December 2020 at 1:17 pm.
10 Cap. C28, LFN 2004.
11 Section 7(1)(a) & (b), supra.
12 Section 8(1) – (2).
14 By virtue of section 4 of the Finance Act 2019, a non-resident company may be taxed based on the principle of Significant Economic Presence (rather than by having a fixed/physical base in Nigeria).
16 See Copyright.gov, "Statutory License for Secondary Transmissions by Cable Systems – Section 111", available here < https://www.copyright.gov/licensing/sec_111.html>, accessed 18th December 2020 at 12:17 pm.
17 World Intellectual Property Organization (WIPO), "Broadcasting & Media Rights in Sport", available here < https://www.wipo.int/ip-sport/en/broadcasting.html> accessed 18th December 2020 at 1:55 pm.
18 No 3:06-CV-276-L, 2007 US Dist. WL 79311 (ND Tex. 9 January 2007).
19 487 F.3d 701 (9th Cir. 2007).
20 (Unreported) C-160/2015, reference available at < https://uk.practicallaw.thomsonreuters.com/9-627-0604?transitionType=Default&contextData=(sc.Default)&firstPage=true> accessed on 4th December 2020, at 9:14 am.
21 Joined cases C-403/08 and C-429/08, see News brief “Pubs, football and decoders: the end of exclusive content licences?” summary available here < https://uk.practicallaw.thomsonreuters.com/4-509-4992?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default) > accessed on 4th December 2020 at 9:29 am.
22 C-466/12, summary available at < https://uk.practicallaw.thomsonreuters.com/4-558-3665?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&comp=pluk&firstPage=true>, accessed on 4th December 2020 at 9:52 am.
23 Section 6.2.8, the Code, available here: < https://techpoint.africa/wp-content/uploads/2020/06/NBC-Reform-curved.pdf> last accessed on 18th December 2020 at 11:23 am.
24 Section 2.0.3, the Code.
25 Olukolade O. Ehinmosan, Nigeria: Highlights of the 2020 National Sports Industry Policy (NSIP), available at < https://www.mondaq.com/nigeria/sport/982128/highlights-of-the-2020-national-sports-industry-policy-nsip> accessed 4th December 2020 at 10:15 am.
26 < https://www.businessinsider.com/sports-tv-ratings-more-important-than-attendance-2015-11?IR=T> accessed on 4th December 2020 at 10:06 am.
27 Oluwafunmilayo Mayowa, "A Brief Review of the Nigerian Draft Copyright Bill 2015", available here < https://www.mondaq.com/nigeria/copyright/866262/a-brief-review-of-the-nigerian-draft-copyright-bill-2015-oluwafunmilayo-mayowa>, accessed 18th December 2020 at 2:08 pm.
Originally Published by S.P.A. Ajibade, January 2021
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