A Kenyan Perspective on Copyright and Sports Broadcasting
By Hezekiel Oira, Professor of Law, School of Law, Mount Kenya University, Kenya
Sports have become a global industry and has made an immense contribution to the world’s social, economic, cultural and political development. While some make use of sports to achieve national political objectives, the rapid development of global sports is underpinned by economic and cultural imperatives and fueled by the rapid evolution of technology.
In Kenya, historically, sports have been linked to indigenous culture and the process of traditional initiation into adulthood or warrior status. Modern sports events are an extension of indigenous sports, which find expression in mock-fights, drumming, bull or cock fights, and dances (see The Africans: A Triple Heritage, Ali A, Mazrui (1987)).
The advent of new communication and broadcasting technologies has transformed the sports landscape in Kenya. The emergence of global sports bodies to regulate sporting events, the deregulation of the broadcast spectrum and the emergence of new broadcast technologies have transformed sports into an entertainment medium. Broadcast coverage transforms sporting action into stories through commentaries, fan or player interviews, match analysis synchronized with graphics, songs and other pre-recorded elements prior to broadcasting.
Both television and radio broadcasting have opened sports up to global audiences, fueling their appetite for compelling sporting action. In Kenya, free-to-air broadcasting, pay TV and satellite broadcasting, cablecasting and other online transmissions are stimulating the sports market and sports viewing ratings.
Television and radio broadcasting have opened sports up to global audiences, fueling their appetite for compelling sporting action.
Globally, the rights associated with the broadcasting of sports events are not clear-cut. Different regions and legal traditions embrace different jurisprudence with respect to these rights. Moreover, most national copyright laws, including the Kenya Copyright Act of 2001 s.22(1), are silent on sports broadcasting and copyright and sports. As a consequence in most jurisdictions, court decisions form the basis of the jurisprudence on rights inherent in sports broadcasts.
For example, in the European Union, the 2011 decision by the European Court of Justice (CJEU) in Football Association Premier League Ltd v. QC Leisure (C403/08) determined that live broadcasts of English Premier League matches did not constitute the author’s own intellectual creation and therefore were not works of authorship. That decision effectively removed live broadcasting of sporting events from the purview of copyright protection.
In the United States, the 1976 copyright law (§ 102) extends protection to live sports broadcasts, provided they are simultaneously recorded. However, the subject matter of copyright protection is not sports events themselves but the creative contribution of the director and cameraman in the selection, camera angling, and overall production and transmission of the event.
In India, in Institute Inner Studies v. Charlotte Anderson, the High Court in New Delhi ruled that sports broadcasts were not copyrightable because they fell short of the requirements of originality and predictability.
In Titan Sports Inc. v. Mansion House (Toronto) Ltd (1989), the Federal Court of Canada held that the telecast of a live sports event was not copyrightable unless a simultaneous recording is made to give it an audiovisual character.
And yet, in Australia, the Full Court of the Federal Court in National Rugby League Investment Pty Ltd v. SingTel Optus Pty Ltd held that the broadcasts of a rugby match were covered by copyright principles under the Australian Copyright Act.
Against this patchwork, let’s examine the jurisprudence on sports broadcasting rights in Kenya. But first, it is useful to examine the nature of sports events and their management in Kenya.
The nature of sports and sports venue rights in Kenya
Kenya’s Sports Act defines sports in very broad terms and covers professional, semi-professional, and amateur sports events. The most common competitive sports in Kenya include track, field and running events; motor-racing; soccer; cycling; basketball; cricket; taekwondo; rugby; and horse racing.
In Kenya, organizers of sports events control access to a sports venue. Their use of real property rights (i.e. over land or adjoining property) to secure access to a sports venue arises from the fact that on-site sports events do not enjoy property rights (see Victoria Park Racing and Recreation Grounds, Co. Ltd v. Taylor (1937). In part, this is because the outcome of most sporting events is unpredictable and, in part, because the endeavors of athletes are aimed at winning and not creativity.
In applying the real property right, the event organizer can give conditional access to or refuse to admit fans, broadcasters or other media entities. This so-called “house right” to control access to a specific venue is based on contractual relations and not on a property right and has limited applicability outside enclosed and secured venues.
Interface between sports broadcasting and copyright in Kenya
In Kenya, authors’ rights and neighboring rights are covered by the Copyright Act. Section 22(1) of that Act prescribes categories of works that enjoy copyright protection. These include literary and works, musical and audiovisual works, sound recordings and broadcasts. While it does not include sporting activities, the Act does clarify whether a signal carrying a sports event is protectable as a broadcast.
For example, Section 23(3) of the Act provides that a literary, artistic or musical work shall not be eligible to copyright unless; (i) sufficient effort has been expended to give the work an original character; and (ii) the work has been written down, recorded or otherwise reduced to material form. Therefore, it is suggested that the legislature intended that broadcasts, sound recordings and audiovisual works remain outside the doctrine of originality. This is largely because these works are entrepreneurial in nature and, as such, enjoy neighboring or related rights protection. In this context, the broadcaster’s neighboring right is not dependent on whether the content with which they work qualifies for copyright protection.
Kenya’s Copyright Act (Section2) defines broadcasting as “the transmission, by wire or wireless means, of sounds or images or both or the representations thereof, in such a manner as to cause such images or sounds to be received by the public and includes transmission by satellite”. The Act therefore implies that broadcasting is the transmission of electromagnetic waves embedded with images or sounds, or both, propagated over the air or via satellite for reception by the public. It follows, therefore, that broadcasts are electronic signals that carry radio or television programs and are transmitted, in the case of Kenya, by wire or wireless means by or on behalf of the broadcasting organization for reception by the public.
The Copyright Act does require that that the images or sounds embedded in a broadcast signal are copyrightable. Therefore such images or sounds could relate to sports events or other non-copyrightable material provided they are intended for reception by the public. When a broadcaster prohibits a given use of its signal, the prohibition will extend to the content carried by the signal, but only in that particular context and in that particular combination. Therefore, in Kenya, sports events may be protected as:
- Broadcasts, insofar as they are entrepreneurial works that are eligible for related rights protection. Protection is based on the broadcasters’ entrepreneurial efforts and investment in the activity of broadcasting and is granted irrespective of the copyrightability of the underlying content. For example, In Kenya Broadcasting Corporation Wananchi Group and another, the High court in Nairobi granted an injunction against the defendants restraining them from rebroadcasting, without the plaintiff’s authority, the 2014 FIFA World Cup tournament in Brazil over which the plaintiff enjoyed exclusive terrestrial free-to-air broadcast rights. The ruling implies that once a sports event is transmitted by a broadcaster it qualifies for protection as a broadcast.
- Audiovisual works, insofar as the Kenyan Copyright Act defines such works as
a fixation in any physical medium of images, either synchronized with or without sound, from which a moving picture may by any means be reproduced.
In Kenya, the recording of moving images (i.e. an audiovisual work) is protected under copyright law irrespective of the originality of the underlying content.
- Sound recordings, insofar as sports commentaries, interviews of fans or athletes, or event analysis by experts may constitute an aural fixation eligible for copyright protection. In Kenya, a sound recording may be that of a performance or any other sound, including sports commentary, analysis, interviews or anthems. The method by which the sounds are fixed or the medium or quality of the fixation is irrelevant.
- In Kenya, sports events may also qualify for protection as artistic works. Although a sports event itself is not an artistic work, elements of such events and the way in which they are broadcast are indeed artistic creations. Broadcasters typically enrich their coverage with creative and graphical elements and transform their coverage into an artistic output that qualifies for protection under copyright law.
- But can the broadcast of sports events be considered a performance? The Kenyan Copyright Act (Section 30(6)) defines a performance as the representation of an existing work by action, such as dancing, playing, reciting, singing, declaiming or projecting to listeners by any means whatsoever. As a performance must be based on a pre-existing work, a sporting performance does not qualify for protection under Kenyan copyright law nor can its transmission be called a sports performance in the strict sense of the term.
In conclusion, the rough and tumble of a sports event at a venue does not qualify for IP protection because the movements and exploits of athletes are focused on achieving specific outcomes and results. Moreover, a sports competition or tournament is subject to a series of established rules that limit creativity and that lead to inherently unpredictable outcomes. Indeed, from the viewpoint of fans, that is what makes sports such compelling viewing. However, when sports events are subject to technical production for broadcasting purposes, they are transformed into media events that embody the technical, organizational and entrepreneurial skills of a broadcaster. And, once these events are embedded in transmission signals, they become an integral part of the broadcast which enjoys neighboring rights protection.
In addition, when sounds relating to the sports event – commentaries, songs or interviews – are recorded they become eligible for copyright protection as sound recordings. And if images of the event are recorded with these sounds, they qualify for protection as audiovisual works. Moreover, sports broadcasts may qualify as artistic works in light of the value added during the recording, production, and eventual transmission of a sports event. And finally, in Kenya, sports broadcasts do not qualify for protection as performances, as they are not based on any pre-existing work.