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Broadcasting sport events and consumers rights to get free access to to extracts of these events

  

Broadcasting sport events and consumers rights to get free access to to extracts of these events


Strict supervision of a "brief excerpts": a necessity


While the Law of 1 February 2012 amending Article L333-7 of the Code of Sport, has forced the CSA to make an official decision January 30, 2013, amending its earlier statement from 2008, the Court of Justice of the European Union had to look at the relationship between fundamental freedoms and Directive 2010/13 EU-called "Audiovisual Media Services".


These two decisions deal with the possibility for operators to deliver "brief excerpts" of competitions of "great interest" despite the existence of exclusive contracts.


Indeed, the Directive as French legislation intended to guarantee the right to information to the public. Specifically, it is subscribed to sports pay channels or not, the public must have perfect information of competitions with great interest. However, audiovisual broadcasting rights and exclusivity contracts relating thereto constitute a significant part of the financing of sport. Beyond that, it can not be tolerated exclusivity paid so dearly for audiovisual companies is easily diverted.


To this end, the French legislator has foreseen that the CSA should, after consultation CNSOF and event organizers, determine the distribution of these "brief excerpts".


It follows from the decision in January 2013 that "brief excerpts" may be disseminated should meet a number of strict conditions.


And non-rights holders can take gratuitous pictures of competitions for broadcast during a "news show". Therefore can disseminate these "brief excerpts" newscasts and sports magazines multidisciplinary. In contrast, for magazines unidisciplinary the CSA requires that the images relate to at least three of the same level sports competitions (for a program on the rugby should also images of football and hockey for example).


Then, the CSA has set conditions of time, namely:


- The short extracts may not exceed 90 seconds per hour of airtime each day of competition understood as a calendar day or the period during which meetings are held in the same phase of competition;


- Extracts must be identical for four hours after the first broadcast;


- The brief excerpts may concern only half of the meetings includes day of competition;


- For catch-up TV services, extracts should disappear after 7 days.


Finally and obviously, the extracts can not be the whole program and should always indicate what is the source of these images (the name of the sole holder).


In conclusion, CSA has set very precisely and strictly the conditions under which it is possible to broadcast images of a sporting competition. This debate has tried to address and anticipate disputes that may arise. Believe including various conflicts between the holders of exclusive rights and sports news channels continuously.


This decision also has the merit of being fully compliant with European Union law. Indeed, it has had the opportunity to address the issue of extracts from the application of the European directive SMA. Application of this Directive, the Austrian regulatory authority has approved a diffuser to make short news reports. However, contrary to a previous agreement between the broadcaster and the holder exclusive rights to the UEFA Europa League, the Austrian forced the owner to leave the broadcaster access to their images without compensation other than expenses directly incurred in providing access to the signal (in this case zero cost).


The copyright owner unhappy challenged arguing that this provision was contrary to Articles 16 and 17 of the European Charter. After dismissing the trespass, the ECJ acknowledged that this was an attack on free enterprise. However, for the Court, this attack motivated by freedom of information is "unquestionably" justified by "an objective of general interest." Moreover, "the emphasis is particularly evident in the case of events of high interest to the public."


Beyond the rights holder considered that the infringement was not proportionate with regard to money spent to benefit from the exclusivity. But the judges noted that this holder can still operate for pecuniary exclusive rights and may even negotiate a lower price when buying this exclusive right. In addition, they point out that financially less stringent provisions would restrict public access to information, to the extent that some channels were discouraged!


Finally, this provision, in addition to being required is proportionate in that it limits the duration of the excerpts to 90 seconds!


Thus, the deliberations of CSA seem perfectly in line with the EU law. They allow a balance between the right to public information, media pluralism and the rights legitimately acquired by the holders of exclusive rights.


Limit the length of short extracts seems to be the suitable decision! This is a decision that clarifies the law!


 


Redouane Mahrach - Attorney at law - Sports Law expert


Laura Nowak - Lawyer

  

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