Australia's major sporting codes want changes to copyright laws to protect revenue generated from photographs and television footage taken at events, but developing mutually agreed industry standards may achieve the right balance, writes Claude Harran
Striking a balance between the commercial and public interest in the reporting and broadcasting of sporting events is the key to maintaining a successful relationship between sporting and media organisations. Striking this balance, if, in fact, the current system is out of balance, is the task that the Senate Inquiry into the reporting of sports news and the emergence of digital media is faced with resolving.
The fundamental legal principles creating the underlying tension between sporting and media organisations are the fact that there is no possibility of owning the property rights to a spectacle and the alleged abuse of the fair dealing exception for the purpose of news reporting under the Copyright Act 1968 (Cth) ("the Act").
These two principles together with the Senate Inquiry's terms of reference established the spectrum along which those providing submissions sought to seek clarification of the current environment.
On the one hand, there are calls for the introduction of a new protected "sporting works" right under the Act. As extreme as this submission may seem, in at least one civil law jurisdiction, sporting organisations are granted the ownership rights in the sporting spectacle. At the other end of the argument there are submissions for nothing to be done because the current system adequately permits market forces to resolve the issue.
In Australia, copyright subsists in material only where it is recognised under the Act. Section 31 of the Act provides for copyright in recognised "works". Sections 85-88 provide for protection in "subject matter other than works", which, under section 87, permits protection of a television broadcast.
Television broadcast is defined as "visual images broadcast by way of television together with sounds broadcast for reception along with those images". Broadcast is defined to mean "a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992" and does not include "a service that makes programs available on demand on a point-to-point basis, including a dial-up service".
How is new media covered by the Act?
In relation to copyright in the context of a television broadcast, the owner is entitled to the exclusive right to "communicate it to the public otherwise than by broadcasting it". Communicate is defined to mean "make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject matter, including a performance or live performance within the meaning of this Act".
The owner of the television broadcast copyright, therefore, will have the right to communicate their broadcast - the sporting event in this case - over platforms other than just television and, therefore, has the ability to enforce its copyright in the new media environment in the same manner as it otherwise would do in relation to its traditional TV broadcast rights.
Are media organisations pushing the boundaries in the way they use the platforms they utilise and archiving of the copyright material?
For there to be an infringement of copyright, there needs to be a taking of a "substantial part" of the copyright material. This is not necessarily limited to the quantity of the work taken but copyright can also be infringed by taking the most important part of the broadcast (albeit of a relatively small part) - a qualitative test.
In the sports broadcasting environment this qualitative test is important because it directly relates to the sporting organisation's ability to commercialise highlight packages, mobile phone and internet rights.
The issue of substantiality, however, is not without relevance because Justice Ryan of the Federal Court in Throughvision Pty Ltd (ACN 100 040 033) v Sky Channel Nine Pty Ltd (ACN 009 136 010)  FCA 1527, refused to grant an interlocutory injunction against a horse-broadcasting network as a result of the network's use of parts of the original broadcast of the copyright owner.
In addition, Justice Ryan indicated that the use of the broadcast could potentially be justified on the basis of the "fair use for the purposes of reporting news" exception. The question of substantiality is potentially a double-edged sword, in that if a sporting organisation succeeds in establishing that the substantiality requirement is satisfied as a result of the taking of a small part of its broadcast footage, then it becomes more difficult to say that the footage is not newsworthy.
Therein lies the struggle between the sporting organisations and media outlets. Some sporting organisations seek to control the use of their intellectual property to ensure maximum commercialisation and suggest that, in some circumstances, media organisations are abusing the fair dealing provision for commercial gain.
Sporting organisations claim that to litigate this would be too costly and, therefore, request that the Act be amended to provide clarity as to what is news and how the fair dealing exception is to be applied. Media organisations are generally of the view that the current situation under the Act is sufficient, but that the accreditation procedures implemented to protect the sporting organisations are too onerous.
Seeking to change the Act so that it eliminates ambiguity at the expense of the media will not resolve the tensions.A change to the provisions of the Act to accommodate the sporting organisations' requests would amount to a change in the application of the law in favour of sporting organisations outside the realm of new media and have consequences for the traditional application of the Act and common law to print media and to copyright protected rights more generally.
The most appropriate manner to deal with the difficulties introduced by the advent of new media technology may be to develop mutually agreed industry standards providing general broad guidelines. This worked for the Sydney Olympic Games. In addition, although a media organisation may be the exclusive rights-holder today, tomorrow it may be the non-rights holding organisation and, therefore, has a vested interest in establishing fair and reasonable principles.
Although industry standards are not legally enforceable and apply only to those that have signed up to them, at least there will be some established guidelines as to what can be used for news and the accreditation constraints should be diluted, allowing everybody to focus on the most important consideration - delivery of the sporting event to the public, whether by way of broadcast or as news.
In the short term this provides for a "wait and see" approach but, given the level that sporting organisations suggest that their commercial interests are being eroded, there may be a claim for them pursuing "expensive" litigation.
Claude Harran is a solicitor at Kelly Hazell Quill Lawyers. He is a member of the Australian and New Zealand Sports Law Association, a Law Institute of Victoria Sports Law group participant and a sitting tribunal member for the Football Federation of Victoria