Copyright, Designs and Patents Act 1988: Sporting Events

Lord Callanan Excerpts

Thursday 2nd December 2021 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

I thank my noble friend Lord Astor for tabling what has been a very important debate. I have certainly found it constructive, interesting and informative and am grateful to those Members who have contributed. First, let me make it absolutely clear that the Government are committed to supporting sports and sporting events, as well as athletes, spectators and all those whose livelihoods are dependent on the successful running of sporting events at all levels.

The Question for Short Debate tabled by my noble friend is

“to ask Her Majesty’s Government what plans they have to amend the Copyright, Designs and Patents Act 1988 to include sporting events.”

To address this directly, I should start by explaining that the main purpose of that Act is to protect creative works and intellectual creation, innovation and invention. For copyright, this includes original literary, dramatic, musical and artistic works, as well as films, sound recordings and broadcasts. Live sporting events and athletic performances are not eligible for copyright protection.

The main reason for this is that copyright must be an intellectual creation. I am sure that the noble Baroness, Lady Blake, would argue that some of the fantastic performances of Leeds United in the 1970s were intellectual creations, but I am sorry to tell her that, in general, sporting performances are not considered intellectual creations since the rules of sport leave only limited room for real creative freedom.

Proposals to have sporting performances protected by copyright provisions raise grave concerns about the development of sport—for instance, if an athlete were able to protect their performance, or an aspect of it, from being copied by other athletes. We can see how many difficulties would be caused by going down that route.

The owner of copyright in footage of sport is the person who films it, as they have creative control of how that race, game or event is filmed. The proposal before us of having a sporting event protected directly under the CDPA would reverse this, meaning that the copyright in any film of a sporting event would be owned no longer by the person who filmed it but instead by the event’s organiser or perhaps even its participants. This would represent a significant departure from the prevailing understanding of the purpose of copyright protection, which is to protect the creator and creative industries. This would not just entail reopening the domestic copyright framework; we would also have to consider whether there would be consequences for the UK’s obligations under international legal frameworks.

The CDPA, along with the Trade Marks Acts, forms the basis of an essential form of legal protection available to sporting events. For example, trademarks are valuable assets that can build confidence and loyalty in a business by protecting things such as names and logos. This is especially important in the world of sport, where sports clubs wish to engender a sense of pride and identity in their brand—such as Leeds United—allowing them to invest in and build up a reputation in their club names and logos and then control and commercialise official club merchandise based on that brand.

In addition, films of sporting events are protected by copyright, and this is how organisers of sports traditionally create and control the intellectual property linked to their events. Footage of sporting events allows clubs to license their match or race footage to broadcasters, which of course generates a crucial source of revenue for a wide variety of sporting enterprises.

Certain forms of sports data can also be protected by IP rights, such as database rights. Anyone wishing to use that data would need to seek the permission of the rights holder. That said, copyright does not protect facts themselves, including facts around sporting events—but it can protect how facts are expressed.

My noble friend Lord Astor and the noble Lord, Lord Lipsey, both raised concerns about the use of camera drones to film sports events and using their live streams to gain an advantage over official broadcasts and betting sites. The Gambling Commission regulates nearly all commercial gambling in Great Britain, including all sports betting, and has so far found little evidence that illegal drone filming is linked to illegal gambling sites. The commission can take action against illegal operators, using its relationships with web-hosting companies and payment providers to disrupt these websites.

It is true that filming or recording sporting events is often prohibited under conditions of entry to sporting venues, as it is in cinemas. Drones may be one way of bypassing conditions of entry. The Gambling Commission believes that using unauthorised drones, much like using unauthorised phones from inside venues, is driven primarily by gamblers who are in-play betting on legal sites seeking an advantage from information that is more up to date than that available to operators or other betting exchange users who are watching an official broadcast. However, this type of courtsiding and other forms of illicit filming are not considered an offence under the Gambling Act.

Furthermore, the commission’s sports betting intelligence unit works closely with the betting industry, sports’ governing bodies and the police to protect the integrity of sport and betting. The unit will determine the most effective course of action in each case. This can lead to further investigations being carried out by the commission or the police. The commission also supported a police-led initiative on drone use in racing and invited the UK national police adviser to speak at a sports betting intelligence forum. The commission already requires gambling operators to have policies designed to manage betting integrity and regulatory risks within in-play betting.

The Government are determined to take steps to help sporting events put a stop to organisations and activities that support illegal gambling and the unauthorised use of footage protected by copyright. The Gambling Act review is taking a comprehensive look at gambling regulation in Great Britain to make sure that it is fit for the digital age, including looking at the powers the Gambling Commission has to tackle illegal operators. The Government recognise that these are issues of genuine concern to the businesses that have raised them, but they have not yet seen sufficient evidence of any harm arising to justify any intervention at this time, much less an unorthodox expansion of the copyright regime.

The Government would of course be open to receiving further quantitative evidence on the matter. If the businesses concerned were able to make a better case for government action, backed by persuasive data, of course we would consider what measures might be effective. However, an expansion of copyright-like protection in the way proposed is in our view simply not viable. Not only would it be a significant and unprecedented development, with unknown impacts and unintended consequences, but it would move the globally well-established scope of copyright well beyond the protection of creators and creative industries and fundamentally alter the nature of what subject matter is protected.

I thank my noble friend Lady Neville-Rolfe for her observations on Section 72 of the CDPA. The Government are currently analysing the review of the section and we will publish our findings in due course. I fully agree with the noble Baroness, Lady Blake of Leeds, that sports and sporting events, including grass-roots sport, are of crucial benefit to all levels of the economy. IP can and does provide sport with opportunities to develop and promote revenue and we fully agree that promoting IP rights is crucial to this. As I mentioned previously, the Government are analysing the review of Section 72 of the CDPA and we will publish our findings in due course. I also thank my noble friend Lord Moynihan for his contribution and for his experience in this field.

I end by again thanking my noble friend Lord Astor and those who have contributed to what I think has been a very good and informative debate today.

Committee adjourned at 4.40 pm.