Importance to Canada

There are two main reasons why Canadians, specifically lawyers and law students, should be interested in the ����������/��’B���ԲԴDz� lawsuit. First, a number of Canadians will be directly impacted by the case; and second, the case will establish a precedent for a novel issue in a niche area of law.

A. Canadian Athletes in the NCAA

There are a vast array of Canadians that will be directly impacted by this case. With the number of NCAA-bound Canadians rising, it is becoming the role of the Canadian sports professional to provide guidance to young athletes to navigate the intricacies of NCAA regulations, which now includes intellectual property exploitation and its . Whereas a typical Canadian may discount the market-size for this advice, the number of Canadians competing in the NCAA is substantial: played Division I NCAA basketball in the 2012/2013 season, played in the 17 NCAA Football Bowl Games in 2013, and Canadian National Hockey League players competed in the NCAA at one time. Moreover, the role of a professional advisor is not limited to individual athletes but is also relevant to advising the NCAA itself and the that comprise the NCAA, including Simon Fraser University, the first institution of the NCAA.

��.�������� Case Precedent

Many critics highlight that the SAs have a strong case.[2] However, it is the NCAA’s response to a judicial decision that will be intriguing. It would be very difficult to conceive the NCAA permitting athletes to earn money from likeness during their collegiate careers given the overarching . Nevertheless, the captivating decision moving forward is whether athletes may retain damages awarded from intellectual property lawsuits. Seemingly, if athletes cannot licence likeness for economic gains, then SAs similarly cannot retain damages from athletic-related intellectual property lawsuits. However, that the NCAA would permit Texas A&M’s Johnny Manziel to retain damages from a trade-mark infringement lawsuit without impact to his collegiate eligibility. Thus, Manziel’s lawsuit reveals a possible “loophole” in the NCAA regulations and in amateur eligibility rules in general.

These issues have never been litigated before in amateur sports and, although arising in the context of NCAA athletics, the same issues can easily arise in other sports contexts in a multitude of jurisdictions. The bylaws of national and international sports federations, many of which govern sports in Canada, are also vague regarding the nexus of intellectual property and amateur status. Due to this vagueness, the sporting world simply does not know the boundaries for an amateur athlete’s ability to, or not to, exploit likeness and related intellectual property. Moreover, the case and the NCAA’s reaction will only constitute persuasive authority in relation to other sport bodies and jurisdictions. An issue of significant concern is that there remains the possibility athletes will be permitted to collect damages under NCAA bylaws but in doing so would risk losing amateur status under separate, sport-specific eligibility regulations.

The arguments, defences, reasoning, decision and aftermath of the ����������/��’B���ԲԴDz� lawsuit will provide direction to athletes and lawyers alike. With the trial in June 2014, Canadian athletes, sports administrators and lawyers should be following its progression.

Nicholas Arruda is a JD candidate at Osgoode Hall Law School and is currently enrolled in the course "Law & Social Change: Creative Industries" (Winter 2014). As part of the course requirements, students are asked to write a blog on a topic of their choice.

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The English Premier League requested that internet providers reveal the name of an unknown person who infringed their copyright through online streaming of football games (known as soccer in North America). The unknown individual managed a website – LiveFooty – where he streamed live sporting events. On his website, he wrote: “Hi all! I have created this site, as my personal aim, to be able to watch LIVE football/soccer, basketball matches, etc, without having to pay a cent! Now you can enjoy this too. With LiveFooty, you can watch all the interesting sporting events FREE”

Streaming on the Internet, whether on-demand or live, has become a fundamental channel for communication, sharing of information and as a supplement to traditional downloading. Despite these social advantages, streaming creates serious legal problems. It can amount to an infringement of several of the copyright owner’s exclusive rights, such as the right to communicate the work to the public, and the right to reproduce the work. Despite this, Judge Agmon-Gonen rejected the Premier League’s request and declared that the streaming in this case was lawful and did not infringe copyright, because it did not comply with the statutory definition of broadcasting, and the streaming of live sporting events to the public has a social goal. This brought her to re-balance copyright and declare that users, as opposed to the situation before the enactment of the 2007 Copyright Act, have rights.

On appeal, the Supreme Court overturned the District Court’s decision. The Court held that, although the actual sporting event is not protected by copyright, the production and shooting of such an event is an original work. Streaming is an act of broadcasting within the meaning of section 14 of the Copyright Act. The Court rejected the users’ rights doctrine noting that: “The legal language used in the 2007 Act gives no indication that the legislature’s goal was to recreate the existing balance in copyright and transform defences to rights”. The Court held that streaming of soccer is an infringement and our John Doe cannot find rescue in the fair use doctrine.

Although the Supreme Court was unanimous with regards to the case for infringement, it was divided with regards to revealing the identity of the infringer. The majority agreed that, under the current law, the identity of the person cannot be disclosed. Consequently, the Premier League won only a partial victory. This partial happiness cannot take the Premier League to the bank, because John Doe is still John Doe.

Although I think the Court was right in finding that streaming of a live sporting event is not innocent, I cannot agree with the reasons for rejecting the users’ rights doctrine. Judge Agmon-Gonen was pioneering in her judgment and legal transplantation is a living organism within the Israeli legal system. That was how the Supreme Court imported the US fair use doctrine into Israeli law. Furthermore, the social and cultural implications of strict and narrow interpretations of the newly enacted fair use doctrine dismiss the advantages in this open-ended doctrine; it may end up with unnoticeably re-enacting the closed list of exceptions of the fair dealing doctrine which the legislature found too limited.

Still, on the eve of the Olympic Games and the recent rulings of the Canadian Supreme Court on fair dealings, it remains an interesting question whether streaming of track & field events amount to a user right within the meaning of Judge Agmon-Gonen’s ruling. Speaking of the Olympic Games and Israel, it is interesting to note, from another perspective, a recent confusing decision of the same court issuing an injunction preventing the Israeli Olympic Committee from using a character – Shpitzik (on the left) – as a mascot because it infringes the rights of Israel Education Television in one of their kids TV stars, Kishkashta (on the right) – a singing cactus.

Dr. Lior Zemer is a law lecturer at the Interdisciplinary Center (IDC) of the Radzyner School of Law in Herzliya, Israel. He is also a Visiting Associate Professor at Boston University School of Law. A more detailed publication by Dr. Zemer will follow in the Intellectual Property Journal (IPJ) later this year.

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According to Directive 96/9/EC, databases can be protected by either copyright, or the sui generis right, which essentially considers how substantial of an investment was required to build up and maintain the database in order to determine if it is worthy of protection.  Since fixture lists failed on the sui generis claim in 2004, Advocate General Mengozzi considered whether the fixture lists Football Dataco Ltd. (and others) draw up could be protected by copyright.  Otherwise, they could be used freely, as Yahoo! UK (and others), the defendants, are hoping.

In this case, Football Dataco organizes both the English and Scottish soccer leagues by creating and publishing a list of all the matches to be played in the season.  Yahoo! UK has been using the schedules for its news service as well as for the purposes of organizing betting activities.  Football Dataco wants payment from parties like Yahoo! UK who use their fixture lists in such a way, and rely particularly on Article 3(1) of Directive 96/9/EC which states that “…databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright…”

From this Article, Advocate General Mengozzi asks and answers a few important questions in giving his opinion:

“(1) what is meant by “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” and in particular:
(a) should the intellectual effort and skill of creating data be excluded?
(b) does “selection or arrangement” include adding important significance to a pre-existing item of data (as in fixing the date of a football match)?
(c) does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?”

Advocate General Mengozzi starts by noting that the Directive provides copyright protection for the structure of the database, not the contents, as they would be dealt with in the standard copyright law.  The sui generis right goes not to the originality of the database itself, and instead focuses on the investment of effort in the data it contains.  This is important because it shows that although the sui generis claim in 2004 failed, it does not necessarily ensure failure for a copyright claim in the same type of database.  Furthermore, it also foreshadows Advocate General Mengozzi’s ultimate conclusion, as he notes that Yahoo! have limited their use of the fixture list to the use of the data contained – the dates, teams, times – and not the structure of the list itself.

Advocate General Mengozzi essentially answered his own question 1(a) with his opening considerations of the issue, as he notes that any factor connected with the creation of data, like intellectual effort and skill, must fall outside of the scope of the Directive.

Regarding 1(b), the problem found in Football Dataco’s claim is that the data entered into the fixture lists has already been finalized before it goes into the database.  Team X versus Team Y on Date Z is already decided before the information is put on the fixture list.  Once again, this means that since any “selection or arrangement” that might be worthy of copyright protection takes place at the data creation stage, rather than as a result of the structure of the database itself, Football Dataco’s claim in this respect should fail, according to Advocate General Mengozzi.  He does note however, that while Football Dataco should fail on this point, in general, when data is put into a database such inputting could add “important significance” to the data and thus afford the database protection in that situation.

Question 1(c) concerns whether the way data is selected and arranged in a database by the author is intellectually creative enough to be afforded copyright protection.  Once again, Advocate General Mengozzi sees Football Dataco’s problem hinging on the fact that any creativity takes place before the information is put into the database.  At the input stage, he states, “it is not sufficient [for copyright protection] that the creation of the database required labour and skill.”  He recognizes that generally, the originality threshold required for copyright, in most jurisdictions is actually quite low and often met precisely when a creator applies labour, skill or effort.  However, the threshold of originality that the Directive requires is more than mere effort and focuses on creativity, since the sui generis protection is the branch of protection concerned with resources and work expended in creating and maintaining the database.

The opinion of Advocate General Mengozzi appears to skew more toward the reasoning of the United States Supreme Court in , rather than the Supreme Court of Canada’s decision in .  While both of those cases rejected the “sweat of the brow” doctrine for an original work, the United States Supreme Court required a “minimal degree of creativity” while the Supreme Court of Canada called for the “exercise of skill and judgment”.  In fact, it would seem that the Directive forces Advocate General Mengozzi to call for this slightly higher standard.

For Advocate General Mengozzi, if Football Dataco, and parties in a similar situation, want copyright protection, all is not completely lost.  He states that if the creator, in putting the database together, introduces original features, like a particular color coded or graphic based means for representing the data, it could be a very likely candidate for copyright protection.

Brent Randall is a JD candidate at the University of Ottawa.

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