New regulations for sport audio-visual rights in Italy

26 February 2009

Paola A.E. Frassi

The most recent interventions regarding copyright law in Italy may all well be arranged in the same stream: the one of the «modernization» of this area of the law in relation to the challenges raised by the so-called information society, which had already determined important interventions in 2003 (D.Lgs. no. 68).

In this contest, we highlight some regulations; the recent Law of the 9th of January 2008, no. 2, which has introduced paragraph 1 bis in art. 70 Copyright Act (hereinafter l.d.a.) (which refers to the free use on the internet of low resolution images and of degraded music for teaching and scientific use without profit); Legislative decree of December 2007, 31st (converted into Law on the 28th of February 2008, no.31) which, with reference to the reproduction for personal use, has extended the right to a compensation also to remote video recording, amending therefore art. 71 septies l.d.a. and lastly D.Lgs no. 9 of January 9, 2008, which relates to the ownership and commercialization of sport audio-visual rights.

It is interesting to highlight the more general logic under the last mentioned intervention of D.Lgs no. 9 of January 9, 2008, pursuant to which audio-visual sport rights have been introduced in the area of neighboring rights under a new article, 78 quarter l.d.a.

Over the years, we have witnessed a progressive extension of copyright protection, of which the audio-visual sport rights regulations represent at the moment the last intervention.

It suffices to remind that in the 90’s, the recognition of copyright protection to the so-called useful creations (1992 software, 1999 data bases, 2001 industrial design creations, in relation though to EC directive no. 71, 1998), has brought into art. 2 l.d.a. the new numbers 8, 9 and 10.

After this initial phase, all the more recent interventions detailed above are the consequence of the challenges posed by the information society, with particular reference to the creation of new technologies and to the multiplying of exploitation platforms of protected material.

This last certainly seems to have determined the need for protection of the sport audio-visual rights, with particular reference to the several uses of sport events on different media (TV, computer and mobile).

Taking into consideration that most of the provisions provided for by the decree (see articles 1 to 5) are structurally copyright provisions, sport rights would have logically needed to be located in the l.d.a; the remaining part of the regulation deals instead with the collective right negotiations with media operators on all platforms. These negotiations come about with distinctive competitive procedures referring to the national market (art. 7.1), provided that conditions of equity, transparency and non discrimination are met (art.6.1). The guidelines of this centralized commercialization of audio-visual sport rights need to be predetermined by the organizer of the competition (for soccer, the soccer League) and are subject to the control of the Autorità Garante and the AGCOM for the respective profiles (art.6.6), as well as to the supervision of the Competition Regulatory Authority in order to maintain a competitive environment for the negotiation of the rights on the international market. (articles 16-17).

The aim of the Decree is to allow for a balanced division among all the participating subjects of the profits deriving from the exploitation of the sport events (articles 21-26).

These various aspects will not be analyzed in this contest.

On the other hand, it is to be noted that art. 28 of Decree no. 9/2008 ha introduced in Title II l.d.a. (neighboring rights) a new Section I ter, entitled audio-visual sport rights.

From this choice, the assimilation of this new category to neighboring rights may be evicted, also considering the referral contained in the law to a general application of the copyright statute "if compatibile".

This equation may be built, on a systematical level, on the need to protect the investments that the organizers of sport events make (in particular in the soccer sector) and on the subsequent need of securing investors with the possibility of an adequate economic return when negotiating the right exploitation with media.

It remains the fact that the materials on which the audio-visual sport rights rest are simple event documentation for which an exclusive copyright protection is provided due to their economic significance.

In relation to the recall of the rules of the l.d.a. provided for in art. 78 quater l.d.a., it can be noticed that the decree contains a complete regulation of these rights, of their ownership and use and of their duration, so that the reference to copyright law mainly reflect a systematic need for arrangement, particularly with reference to the relationships between the audio-visual sport rights and the audio-visual producer rights (articles 78 bis and ter), as well as with the rights of radio and television broadcasters.

Coming to this second aspect, the audio-visual producer right strictly relies on the material ownership of the shooting of the event, which is vested in the organizers of the event and in the producer, who anyways acts under the direction of the organizer and has to make available the images of the events to all the grantees of the audio-visual rights under non discriminatory conditions and on the basis of pre-fixed rates (see art. 4, paragraphs 6 and 7). This is a mechanism which seems to cancel the nature of the exclusive rights recognized to the audio-visual producer by copyright law.

In relation to broadcasters, the decree refers in general to all the communication operators, with no distinction between the various types of transmissions, and provides for the possibility of distinctively negotiating the rights for every single platform (air, cable, satellite).

Before coming to the issue of the ownership and use of these rights, it is necessary to investigate the content of audio-visual rights.

Art. 2.1 letter o) states that these are exclusive rights, lasting for fifty years from the date in which the event occurs, following the general rule laid down for neighboring rights.

Such rights though have a wide content which is largely built upon the rights traditionally recognized to neighboring rights owners (fixation, reproduction, communication to the public and on e-demand, distribution of the supports incorporating the event, renting and loan of the fixation, nos. 1-5), and also recognized are the right to the exclusive right of exploitation of the event images for promotional, publicity and sponsoring purposes (no.6) and the so called archive right (no.7).

It is also interesting to notice that, as provided by this discipline, the circulation of audio-visual rights, on the basis of the offer procedures as in articles 6 et seq. of Decree 9/2008 (in particular articles 6.1 and 8), comes about by packages relating to each single competition. It is therefore imposed a negotiating scheme for the various rights, which differs from the one which is at the basis of the independency of copyright rights as stated in art. 19 l.d.a.

Having defined the audio-visual rights, it is fundamental now to identify their owners (art. 3) and the subjects who can legally make use of these rights.

The scheme chosen by the legislator is the one of joint ownership which is vested in the organizer of the event (which is the sport company which organizes each single competition) and in the organizer of the whole competition (the subject which organizes the whole competition invested by the sport federation of such discipline; for soccer, the Lega Calcio).

With regards to the use of the rights on each single event of the competition, these are given to the organizer of the competition (art.4), in coherence with the scheme of the rights centralized negotiation which is managed by the same subject (articles 6-8).

The model of joint ownership, whereby the use is managed by only one of the right owners equates the solution adopted by articles 44 and 45 l.d.a. with reference to the rights on cinematographic works. In this case though, the producer acquires these rights in a derivative way, while in the case of audio-visual rights, the rights are autonomous and originally generated.

Being the audio-visual production a faculty of the organizer of the event, and being this production performed directly under its direction, the ownership of the event shootings is assigned, pursuant to article 4.6 of decree, to the organizer of the event and such images are then necessarily made available to all the grantees of the audio-visual rights (art. 4.7).

Conceptually, a solution can draw close to the exceptions and limitations pointed out by the fundamental law, in particular to the exception laid down by article 65.2 l.d.a., as the discipline contained in article 5 of the decree recognizes the right of communication of sport news to media operators.

The possibility to diffuse the results of the competition, also in real time, is guaranteed to media operators; paragraphs 3 and 4 of article 5, within precise time and condition limits, ensure the possibility to broadcast the topical images of the event; to this end, these images need to be made available to the broadcasters by the owners of the audio-visual rights and by their assignees (art. 5.6).

A small final mention is due on the issue of the enforcement of the audio-visual sport rights which, in coherence with the possibility to use them, is exclusively recognized to the organizer of the competition, except for the cases in which some autonomous commercial initiatives are reserved to the organizer of the single event (art. 4.3, with reference to the exploitation on thematic official channels, art. 6.3, with reference to some secondary rights such as performances and highlights, art.11.3 with reference to audio-visual rights which have remained unsold).