Copyright Implications Of Sports Live Streaming In Nigeria – Intellectual Property

Copyright Implications Of Sports Live Streaming In Nigeria – Intellectual Property


To print this article, all you need is to be registered or login on Mondaq.com.

COPYRIGHT IMPLICATIONS OF SPORTS LIVE STREAMING IN NIGERIA 1

Introduction

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:

  1. 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.

  2. 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:

  1. Fair dealing – for the purposes
    of research, private use, criticism or review or the reporting of
    current events;

  2. For use in an approved educational
    institution for educational purposes;

  3. 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

  4. 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 Davis
18 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 al
19 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

Conclusion

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.

Footnotes

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.

6
Dictionary.com, Broadcast, available at https://www.dictionary.com/browse/broadcast>
accessed 18th December 2020 at 8:36 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.

8
Wikipedia, Broadcasting, available at https://en.wikipedia.org/wiki/Broadcasting>,
accessed 2nd September 2020 at 2:40 pm.

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).

13
Yewens v. Noakes, (1880) 6 Q.B.D 538; Lawrence v. Dana Stanford
University Libraries, http://wvvw.fairuse.stanford.edu/.,./9
a.html
, “Copyright and fair use”, (March 14,
2017).

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).

15 The
Copyright Law of the United States of America, Title 17 of the
United States Code, available here https://www.copyright.gov/title17/title17.pdf>,
accessed 18th December 2020 at 12:20 pm.

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

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.

Source: www.mondaq.com