Recordation of Sport Events is Subject to Copyright Protection in Israel
by Jonathan Agmon
Last week, the Israeli Supreme Court handed down its decision in Civil Appeal 9183/09 The Football Association Premier League Limited v. John Doe (Published in Nevo, May 13, 2012). Vice President of the Court, Judge Rivlin handed down the unanimous opinion, overturning a controversial decision issued by the District Court. The Supreme Court held that filming of sporting events , including its production, directing and editing of the film amounts to an original work of art, protected by the Israeli Copyright Law.
This, despite the fact that a sporting event is, in itself, an occurance taking place in real time, displaying facts which are not copyrightable. In addition, the court determined that the broadcasting of a live sporting event through streaming is equal to traditional broadcasting and therefore constitute copyright infringement.
In this case, the English Premier League motioned the Tel Aviv District Court to order the Internet Suppliers, Netvision 013 and Nana 10, to reveal the name of an unknown individual who allegedly infringed the rights of the Premier League through online streaming of football games.
Initially, the District Court Judge Michal Agmon-Gonen held that the shooting of sporting events was not copyrightable. At a later decision, Judge Agmon-Gonen held that while the shooting of the sporting event was copyrightable, streaming does not meet the statutory definition of broadcasting, since the law defines broadcasting as technology dependent and limited to “wire or wireless transfer”. Judge Agmon-Gonen stated that the relevant right for transferring of content over the Internet is the right to make available to the public. The live transferring of a sporting event can only be watched during the period of time in which the event takes place. Thus, it is not available “at the time of choice” of the public as is defined in the “right to make available a work to the public” under the law. Therefore Judge Agmon-Gonen found no infringement.
Judge Agmon-Gonen further reviewed the question whether the actions of a John Doe amount to fair use. The District Court Judge stated that the new Copyright Law (passed in 2007, in effect since May 25, 2008) changed the balance between users and rights’ holders such that users now had a right of their own. Accordingly, the Judge stated that the public interest for giving the public access to cultural events should overcome the interests of the rights’ holders. Furthermore, since to the Court’s opinion the sporting events are not protected by themselves, and since the creative elements in the recording of these events – including the photograhy, the direction, production, commentary etc. – are of secondary importance compared to the eventuation and the score of the sporting event, this issue does not impact the heart of copyright law and rationale, and therefore the actions involved should be considered as fair use.
In the Supreme Court’s rulling of this week in the appeal on the decisions make by the court of first instance, the judges accepted the claims of the appelant and cancelled all of the rullings of the District Court Judge regarding copyright. The Supreme Court Judges stated, primarily, that the recording of sporting events, including the photography, the direction and the production – amount to an original work of art and is worthy of copyright protection. Second, the Judges rulled that since the files that are being transferred during the streaming of the work of art are not saved in the receiving computer but rather deleted following the presentation of the work of art, the streaming technology resembles the classical broadcasting. Therefore, transferring a protected work of art using the streaming technology constitutes an infringment of the right to broadcast.
The Supreme Court stated that transferring of contents through the internet meets the definition of “wire or wireless transfer” in the Copyright Law. The Judges found no reason to limit the “broadcasting” to the technical means and methods that were used prior to the inception of the Internet, since the new Copyright Law seeks to match the Israeli Copyright Law with the digital age and the challenges it poses in the field of intellectual property.
In addition, the Judges stated that the new Copyright Law did not change the balance between the rights of the copyright holders and the interests of the users, and that fair use is merely a right in the sense of “freedom”, not in the strong sense of a forceable right. Thus, fair use is only a defense, and as such the burden of proof to show the defense of fair use applies lies with the defendant. The Supreme Court Judges ruled that John Doe did not prove his fair use defense, and his actions were found to infringe the right or broadcasting of the Premier League.
Nevertheless, the Supreme Court Judges were divided whether to reveal the identity of the respondent. The Majority opinion ruled against it, but refered to the legislator stating that these issues should be determined by law.
While the Premier League won a victory in this case, the outcome is of little effect since John Doe remains anonymous allowing him to escape liability due to lack of proper legislation in Israel at this time.