The 35.6 million posts on Twitter during the recent FIFA World Cup semi-final between Germany and Brazil set a new record for the most tweets about a single sporting event. It is perhaps understandable, therefore, that FIFA invested so heavily in protecting the exclusivity of its intellectual property rights on social media during the world's most watched and largest single sporting event.
But whilst the dust has well and truly settled from this summer's Tournament in Brazil, the challenges posed by copyright infringement have only intensified for sport's rights holders as the new domestic football season gets underway.
In light of the Premier League following FIFA's lead in outlining its strict approach to the threat of copyright infringement, this article considers whether other major sports' IP rights holders will be forced to follow suit as a result of pressures from commercial partners and the continuing expansion and evolution of digital and social media.
Setting a precedent: The FIFA position
The publication of FIFA's 27-page manual on intellectual property use and misuse entitled "Public Guidelines for Use of FIFA's Official Marks" several months before the 2014 World Cup got underway in Brazil was the most significant indication to date of sport's changing landscape in the context of copyright infringement and social media. Designed to offer guidance and information to the general public, the document set out a selection of FIFA's long list of registered trade marks in relation to the 2014 FIFA World Cup, including "2014 FIFA World Cup Brazil", "Football World Cup" and the official slogan "All in One Rhythm". FIFA's underlying rationale was that "any unauthorised use of the Official Marks not only undermines the integrity of the FIFA World Cup and its marketing program, but also puts the interests of the worldwide football community at stake".
It did not take long for FIFA's policies to be put into practice. Shortly after the Tournament began, the organisation sent takedown notices under the US Digital Millennium Copyright Act 1998 (DMCA) to a number of Twitter users with respect to their "avatars" (profile photos) which contained official images relating to the 2014 FIFA World Cup. In each case, the avatars containing the infringing material were removed by Twitter and replaced by the default "egg" images traditionally associated with new users.
A matter of days later, Twitter granted a further request by FIFA for removal of "@ReplayLastGoal", a fan-based account which generated and published instant video replays of each of the Tournament's goals. The account user claimed that tweeting game highlights via GIFs, Vines (a short form video sharing service) and other methods constituted "fair use" under US copyright law.
FIFA's request was based on the premise that the account was set up to automatically display and/or offer audio visual content to which FIFA own the exclusive rights. It contended that such use or display was without permission and therefore a clear infringement of its rights.
Following suit: The Premier League
On the eve of the commencement of the new top-flight football season in England, the Premier League set out its robust approach to the threat of copyright infringement when it announced its intention to clamp down on the unauthorised posting of unofficial Vines on social media. In an interview with BBC's Newsbeat, the organisation's director of communications stated that:
"You can understand that fans see something, they can capture it, they can share it, but ultimately it is against the law. It's a breach of copyright and we would discourage fans from doing it. We're developing technologies like gif crawlers, Vine crawlers, working with Twitter to look to curtail this kind of activity."
The timing and nature of the Premier League's announcement indicates that it may have stemmed from FIFA's recent approach to protecting its intellectual property as well as the continuing growth of the phenomenon of fans posting Vines instantaneously on various social media platforms of goals and incidents.
A key source of the Premier League's decision, however, is the increased pressure posed by its commercial partners. The Premier League is expected to receive £3 billion in return for selling rights to Sky Sports and BT Sport to broadcast live matches in the UK under a 3-year deal. This arrangement coincides with the emergence of newspapers in the online broadcasting arena, with both The Times and The Sun recently entering into agreements with the Premier League to give their subscribed members online access to match highlights.
The nature of these lucrative arrangements and the need to ensure exclusivity have made the emergence of these Vines an even bigger threat, with the Premier League having no option but to take a firm stance in order to satisfy its partners and alleviate the risk of damage to future revenue streams arising out of unauthorised use of its copyright.
The legal position
The CJEU held in 2012 in its Premier League v QC Leisure judgment that whilst a potential breach of the Premier League's intellectual property rights would fail to justify preventing the importation of Greek decoder cards for the broadcasting of Premier League matches, some works contained in the broadcasting of matches could form the basis of a claim for copyright infringement. Consequently graphics and highlights are two examples of content which, if contained in a Vine, could amount to an infringement of the rights of FIFA, the Premier League or other rights holder.
The rapid increase in DMCA takedown notices as a method of targeting copyright infringement was reflected in Twitter's biannual transparency report released in July 2014, which revealed an increase of 38% in the number of requests between the second half of 2013 to the first six months of this year, with 9,199 notices being received during the latter period. The report also revealed an 80% increase in counter notices. Material was said to be removed in 76% of cases.
The DMCA, which implements two 1996 treaties of the World Intellectual Property Organisation (WIPO) and which outlines the statutory requirements necessary for formally reporting copyright infringement is part of US copyright law and came into effect in 1998. Essentially a DMCA takedown notice is a request for content to be removed from a website by the owner of either the content or its copyright.
The emergence of the takedown notice as a means of enforcing intellectual property is also illustrated by a recent Virginia Journal of Law and Technology report which stated that Twitter received more than 6,000 such requests in 2012 compared to zero in 2008. In addition, whereas up until 2010 any takedown notice consisted of a single claim, nowadays notices can contain multiple requests.
Sport's rights holders: Issues to consider
The obvious commercial consideration will be whether the benefits of enforcing intellectual property against social media users who are fans of the sport outweigh the risks of negative publicity and damage to brand, especially in light of relationships with sponsors and partners. This is a balancing exercise that will require careful consideration.
An obvious example of this risk against reward dilemma is the decision by Manchester United F.C. in February 2014 to send a DMCA takedown notice requesting the removal of a Twitter account named "@ManUtd_Players", which was owned by a fan and dedicated to the club but with the official Manchester United club crest as its avatar. Twitter viewed the content as a clear infringement of copyright, and ordered the user to remove the content, before suspending the account.
For some national sporting federations, clubs, sponsors and even players, the benefits of successfully protecting an intellectual property portfolio by having content removed will always outweigh the risk of unwanted media attention and accusations of abuse of power at the expense of the individual. Others, however, will be mindful of the risk of raising the profile of something that was in fact intended to be minimised. As the recent FIFA and Manchester United F.C. examples show, intellectual property enforcement against individuals and in particular fans is very much a public process.
Another consideration is the potential implications of takedown notices and other IP enforcement measures being challenged. It is difficult to predict how much weight defences grounded on the "fair dealing" or "fair use" doctrines in UK and US law respectively might have in future disputes, but the difficulty of policing legal action in the unregulated world of digital and social media is nevertheless significant.
Interestingly, FIFA's recent stance to some degree contrasts to the approach taken by global photo agency and supplier, Getty Images. Whilst initially the organisation took an aggressive position in enforcing copyright through cease and desist letters, it recently reconsidered its position and decided to make available millions of its images in return for web publishers using an embedding system with native codes for sharing in Twitter, Tumblr, Pinterest and other weblogs.
In light of recent developments, the challenge for sport's leading entities, whether it be national sporting federations, clubs, sponsors, broadcasters or other rights holders, is to seek an appropriate balance between the need to protect their intellectual rights and the risk of compromising their brand, image and reputation.
In considering the influence of lucrative broadcasting deals on the Premier League's approach to copyright infringement, it should be borne in mind that the greater the value of the product, the greater the damage in the event that it is undermined. Whilst taking action against fans guilty of releasing 6-second Vines into the public domain is unlikely to improve the Premier League's image, the reality is that if it eradicates what are essentially competing products and preserves its relationship with commercial partners, it will be worth it.
For Vines and other video clips which infringe copyright, the question is not so much whether sport's rights holders will choose to follow the precedent set by FIFA and the Premier League, but rather the rate at which they will be forced to do so. The attitude of Twitter and other microblogging and social media giants will also be significant in shaping this process and indeed the future direction of this area of the law, which is why there are few more fascinating areas affecting the business of sport.
Three years ago the most recent social media phenomena to influence football and its fans, Vine, did not exist. Yet today, it has 50 million users with Twitter account @FootballVines having more than 539,000 followers. As Facebook, Twitter and Youtube continue to evolve and expand, with this will bring fresh challenges and new questions for sport's rights holders. We await their response.