UK: Broadcasting The Olympics In Brazil And Beyond

Last Updated: 9 June 2016
Article by Emma Sagir

The key legislation governing nearly all aspects of sports law in Brazil, the "Pelé Law", named for the then-Brazilian Sports Minister and former footballer, Pelé, provides that sports entities (such as teams, leagues, federations or confederations) own the media rights over sports events that they organise and/or take part in. These rights, known as "arena rights", are generally exploited through three channels: (1) broadcast agreements (2) broadcast licences and (3) advertising contracts.

Overview of sports broadcasting law in Brazil

Broadcast agreements for sports events in Brazil are heavily dominated by Rede Globo (Central and South America's largest commercial TV network and the second-largest commercial TV network in terms of annual revenue, worldwide) and its cable channel, SporTV, which usually retains the rights to license the arena rights to third parties. The buyer has the option to acquire specific rights for each platform, as TV rights, radio, internet, mobile telephony, and so on, and for specific territories, languages, types of payment (such as pay-per-view), and type of programme (live or delayed transmissions, and so on).

The broadcast agreements and licences may also regulate advertising exploitation, covering areas such as advertisements on team clothing or at the sports venue. In other cases, the payment made by the network includes advertising revenue and the broadcast licences may then restrict the advertising made by the licensee.

Another area of exploitation covered by the Pelé Law is image rights, including rights of publicity, which are assured by the Brazilian Constitution and Civil Code. The Pelé Law provides that athletes' image rights should be compensated with 5% of the arena rights paid by the networks to the sports entities.

In terms of intellectual property rights belonging to sports entities, these are subject to acquisition and ownership in a broadly similar way as under UK law. Whilst there is no doctrine of "fair use" or "fair dealing" in Brazil as such, there are limitations in the Law on Copyright and Neighbouring Rights effectively providing almost identical defences to the "fair dealing" defence, such as reporting current events and quotation for the purposes of criticism or review.

Olympic specific rules

Shortly after Rio de Janeiro was selected to host the 2016 Olympic and Paralympic Games, the Brazilian Congress passed The Olympic Act, which contains a number of special rules required for the carrying out of the Olympic Games, among them specific provisions designed to protect the official symbols.

The Olympic Act places responsibility for monitoring, investigating and suppressing any unlawful acts that violate the rights in "Olympic symbols" in the hands of federal authorities, with Olympic symbols being broadly defined as including, amongst other things, the Olympic rings, official emblem, mascots, trade marks, identifications, logos and insignias identifying the Olympic and Paralympic Games generally and the Rio Olympics and Paralympics specifically. The Act expressly prohibits the use of any symbols in connection with the Games without the consent of the Rio 2016 Games Organizing Committee or the International Olympic Committee (IOC), whether or not for commercial use.

The Act complements the already-existing rules of other statutes and treaties, including a provision of the Pelé Law which grants the Brazilian Olympic Committee exclusive rights in relation to the flags, mottos, anthems and Olympic symbols, as well as to the names "jogos olímpicos," "olimpíadas," "jogos paraolímpicos" and "paraolimpíadas".

In terms of trade marks, the Brazilian Industrial Property Law prohibits the registration as marks of names, prizes or symbols of official sporting events, as well as imitations likely to cause confusion, except when authorized by the competent authority or entity promoting the event. This was reaffirmed by the National Institute of Industrial Property (INPI) in January in special guidelines on the examination of applications for marks formed by the word "Olympic." However, whilst the guidelines prohibit the registration, as a trade mark, of signs which reproduce or imitate the IOC's and Organizing Committee's flags, emblems, anthem, marks and symbols, as well as the name of the event and variations, this prohibition does not necessarily apply to the adjective "Olympic" in all circumstances. According to the INPI's understanding, the adjective "Olympic," in its inherent meaning, refers to the Olympus and the Mount Olympus in Greece, terms commonly used in Brazilian Portuguese to convey the idea that something is majestic, grand or impressive due to its greatness or importance. Therefore, according to INPI, registration of marks formed by the adjective "Olympic" is possible so long as there is no possibility of association with the Olympic Games or its organisers.

Broadcasting the Games

As the governing body of the so-called "Olympic Movement", the IOC is recognised in Brazil under the Pelé Law as the rights holder of the media rights detailed above vested in the up-coming Rio Olympics and Paralympics. The IOC operates under the Olympic Charter, a set of rules and guidelines for the organization of the Olympic Games, and for governing the Olympic Movement. The IOC sells the worldwide broadcast rights to the Games to selected broadcasters. For example, in Brazil, rights have been granted to Rede Globo and its subsidiary SporTV, Rede Record, Rede Bandeirantes, ESPNA and Fox Sports, but in the UK, the Games will be broadcast exclusively on the BBC.

It would be in the interests of news and media outlets that have not been granted broadcasting rights but still wish to use footage of the Games, to respect the IOC's and official broadcasters' copyright. In the UK this would mean, for example, complying with the fair dealing for the purpose of the 'reporting current events defence' and, in Brazil, complying with the legislation set out above. In addition to this, however, the IOC has its own set of rules, known as News Access Rules (NARs), which apply to broadcasts of the Games globally, which are arguably more restrictive than copyright law that would generally apply to broadcasts of sports events in most, if not all, participating countries.

The NARs apply to all forms of broadcasting, including terrestrial, satellite and cable TV, video on demand, radio, internet, mobile platform and other interactive media or electronic medium. The rules allow for footage of the Games to be used by broadcast media organisations which have not been granted broadcast rights in a particular territory as part of regularly scheduled daily news programs of which the actual news element constitutes the main feature, on "all-news networks" (channels with news as their sole or predominant content) and "all-sports networks" (channels which primarily or predominantly focus on sports-related programming).

However, use of the footage under the NARs is strictly limited. Use in a daily news program must not exceed six minutes of Olympic footage per day, in no more than three news programs per day, with no more than two minutes being used in any one program and the news programs must be separated by at least three hours. Use on an all-news or all-sports network is also restricted to six minutes per day but in no more than six programs, with no more than one minute being used per program and a minimum time between programs of two hours. Furthermore, this footage can only be used for 48 hours following the completion of an event. Archive material can only be used with the express prior written consent of the IOC.

The NARs also prevent the broadcast of footage on interactive and video on demand services. However, this rule is subsequently qualified with reference to any fair dealing or similar provisions which may be applicable under national law. In this regard, the NARs stipulate that, should use of footage by "Bona Fide News Organisations" for news purposes on internet, mobile or other interactive platforms be permitted, it should be properly geo-blocked for the appropriate territory.

Whether or not the limit of six minutes of footage per day corresponds with what the fair dealing defence (where available) would allow is not entirely clear. Fair dealing is a question of degree. In the recent UK case England and Wales Cricket Board Ltd and another v Tixdaq Ltd and another [2016] EWHC 575 (Ch), it was held that eight-second clips of cricket matches constituted a substantial part of the claimants' copyright works on the basis that, whilst eight seconds was not a large proportion of a broadcast lasting two hours or more, as the clips constituted highlights of the matches, they all showed something of interest and therefore of value.

There is also a question mark over whether prohibition on the use of material more than 48 hours after the event has taken place would be considered too restrictive in the context of an event being of "continuing current interest to the public". In the UK at least, this concept is construed liberally by the courts and current events are not necessarily confined to specific and very recent happenings.

Enforcement of the IOC Rules

Whilst the NARs do not have the force of law, they represent a clear statement of what the IOC considers to be infringing. Given the willingness of the governments of most, if not all, countries participating in the Games to support the sovereignty of the IOC, it is likely that any challenge to the NARs would be difficult. It is also in the interests of broadcasters which have not been granted rights to stay on the right side of the IOC and the authorised broadcaster(s) so as to obtain as much access as possible to one of the biggest events in the global sporting calendar.

However, given the ever-increasing proliferation of user generated content through channels such as social media networks, large scale news and media broadcasters are likely to be the least of the worries of the IOC, as discussed further by Mark Owen in his look at Olympic broadcasting exclusivity and the challenge of user generated content.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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