**Written by C. Theuri & V. Nzomo
Tonight the Brazil 2014™ FIFA World Cup™ (WC) kicks off in the South American nation of Brazil! As previously discussed here, FIFA has developed and protected an assortment of logos, words, titles, symbols and other trade marks to be used in relation to the 2014 FIFA World Cup™ (the Official Marks). In order to attract funding to stage such a large event, FIFA offers its partners, sponsors and supporters the exclusive rights to use of the Official Marks for promotional and advertising purposes.
In this post, we shall consider FIFA’s intellectual property (IP) rights in the broadcasts and public view of the WC. It is clear that all copyright and other (IP) rights subsisting in, and all goodwill associated with, broadcast coverage of the WC are exclusively owned by FIFA and protected by domestic and international law. In this regard, FIFA distinguishes between broadcasters who are defined as Media Rights Licensees and exhibitors who stage Public Viewing Events in relation to any matches of the 2014 FIFA World Cup Brazil™.
For broadcasters, FIFA offers exclusive rights to transmit live coverage of the games using the following platforms, namely internet, mobile, radio and television. Within Africa, FIFA has negotiated and concluded a Media Rights Agreement with the African Union of Broadcasters, the umbrella body of all State-Owned Broadcast Networks in Africa. Therefore in Kenya, the exclusive media rights licensee for TV and Radio is the Kenya Broadcasting Corporation (KBC). See full list of FIFA Media Rights Licensees here.
For exhibitors, FIFA defines a “Public Viewing Event”(PVE) as any event where broadcast coverage of the Competition is made available for exhibition to, and viewing by, an audience (whether members of the general public or otherwise) in any place other than a private dwelling. By way of example, exhibitions in bars, restaurants, stadiums, open spaces, offices, construction sites, oil rigs, waterborne vessels, buses, trains, armed services establishments, educational establishments and hospitals are not deemed to be commercial public viewing events if no further commercial activities (such as admission fees or sponsorship activities) take place in relation to the public viewing activities. However, 3D exhibitions and public viewing exhibitions in theatres and cinemas are excluded from the definition of PVE.
It is important to note that exhibitors staging either a Commercial PVE or Special Non-Commercial PVE will require a license from FIFA. A Commercial PVE is where the exhibitor stages a PVE for commercial purposes i.e. a direct or indirect admission fee is charged for the exhibition of the broadcast coverage; and/or sponsorship or other commercial rights of association are exploited relating to the event; and/or in any other way commercial benefit is gained from staging the event.
From an intellectual property perspective, exhibitors must be take note of two important copyright and trade mark issues. On the trade marks side, exhibitors of PVEs in “commercial establishments”, such as pubs, clubs and bars i.e. Non-Commercial PVEs cannot not use, nor authorise the use of, any Official Marks (or any part thereof) or any symbol, emblem, logo, mark or designation which, in FIFA’s opinion, is similar to, or is a derivation or imitation of, any of the Official Marks.
With regard to copyright, there are two requirements that exhibitors must comply with. Firstly, they must ensure that they use the signal of the official licensed broadcaster of the WC Competition in the respective territory for their PVEs. Secondly, they must ensure that their premises are licensed by the relevant collective management organisations (CMOs) for public performance and/or communication to the public of broadcasts. See the FIFA Regulations for Public Viewing Events here.
While the sale of world cup broadcast rights by FIFA is one of its most profitable revenue sources, digital piracy poses a serious threat to the economic value of broadcasting rights. In sports coverage, the value of the coverage is short lived as the viewers interest in a match peaks just before the final result is known. Thereafter, the results are known and interest falls dramatically. During the 2010 FIFA World Cup, over 18,000 illegal broadcasts were identified by FIFA during its tournaments. Further, 18,227 cases of digital piracy were recorded with the main infringement taking place through live user generated content (UGC) streams which made up to 90% of all infringements. FIFA being well prepared was able to remove 12,638 of the live UGC streams in real time. According to FIFA TV World Cup Office in Brazil, in addition to investing “considerable resources in delivering high-end products to its clients, “FIFA also makes great efforts to protect its rights and the rights of its media rights licensees by putting in place a wide range of monitoring systems, including, satellite monitoring, broadcast and Internet monitoring, as well as other measures to safeguard broadcast and other IP rights.”
When looking at worldwide events such as the world cup there is greater urgency to crack down on digital piracy, to ensure that a modern legal framework for right owners is in place and that outdated legislation does not prejudice the interests of broadcasters and sponsors and, ultimately, the financial well-being of sports organizations. South Africa was able to achieve this by having special courts specifically set up for the world cup ‘offences’ and while mainly dealing with criminal offences had the capacity to issue injunctions against the promoters and distributors of illegal broadcasts, trademark and copyright infringement within South Africa during the world cup.
In the Kenyan context, the government through relevant agencies including Kenya Copyright Board (KECOBO) will be called upon by exclusive licensees within Kenya to deal with any alleged violations of FIFA’s IP rights. However exclusive licensees are encouraged to adopt a more proactive approach by engaging with the government in setting up special monitoring and advisory teams to ensure that IP violators are dealt with in accordance with the law.