When Rogers locked up a 12-year, $5.2 billion dollar deal to broadcast NHL hockey in Canada in 2013, CBC was forced to launch what some sources are reportedly calling a ��featuring��layoffs��of over 2000 employees. Despite these changes, CBC promised��Canadians some of coverage of the Toronto 2015 Pan Am��Games��across television, online and mobile platforms, in both English and French. This article provides an overview of��the��key legal issues��impacting CBC's ability to fulfill its promise to the Canadian public.

Broadcasters' Rights

Advances in communication technologies have revolutionized the ways in which billions of people around the world take part in major sporting events. It is imperative that the��rights of individuals to remotely view the events is balanced with the legal rights of the host broadcaster.

According to the World Intellectual Property Organization (WIPO), the sale of broadcasting and media rights is now the for most sports organizations. Meanwhile, the royalties that broadcasters like CBC earn from selling their exclusive footage to other media outlets is what allows them to invest in the expensive technical work required to provide top-quality coverage.

For the Pan Am Games, CBC has already sold broadcasting rights to a number of different broadcasting companies, including: ESPN (USA), ESPN Deportes (USA), TyC (Argentina), Claro Sports (Mexico) and Rede Record (Brazil). Through these broadcasters alone, in the Americas.

Retransmission of the Games

Retransmission occurs when off-air broadcasts are picked up by a transmitter, and sold as part of a package to subscribers outside that broadcaster's reach. For the Games, CBC has the right to authorize or prohibit rebroadcasting, fixation and reproduction of their broadcasts. The Copyright Board of Canada determines the royalty rates that these re-transmitters must pay to use their broadcasts.

Royalty rates are calculated based on a formula that is largely based on TV audience ratings, with a new tariff being set every 5��years. The most recent tariff negotiations,��which are outlined in detail in the , were��received as a major victory for rights holders, who the rate per subscriber per month and CRC's share of the total Canadian retransmission royalties. These changes��represent a combined $3 million more annually for broadcasters, in comparison to 2009.

Growing Piracy "Contaminating" Live Sports

In addition to the broadcasters showing the Games, there will also be many��illegal peer-to-peer streams. In recent years, these streaming sites had improved to include��HD content, interactive program listings (also known as EPGs)��and other attractive��features such as live��social media updates. This has especially been a problem for live sporting events, considering the pirate does not need to pay for the bandwidth that enabled HD resolution, allowing these sites to compete with legal offers for 'free'.

Although host broadcasters could try to go after every individual they believe to be infringing their copyrights, this strategy��can be disastrous from a public relations standpoint (if the reported fallout from the�� from ten years ago are any indication). Even if done for legitimate reasons, suing one's customers may be a dangerous��business model. Additionally, with reporting that the number of illegal peer-to-peer sites has doubled every six months for the past two years, viewers have countless options and little reason to stop streaming.

One Possible Solution?

Some suggest that technology itself might offer a way to curb the piracy issues that currently affect broadcasters. Imagine if something similar to the ��(which is designed to listen to the environment of the user), could be integrated into live streaming apps to detect streams that potentially infringe copyright. However, the terms of use would have to be revised to include consent to this type of monitoring while the app is in use, which raises a number of additional privacy concerns.

What is certain is that illegal live streams are finding ways for sports fans to circumvent the offerings of��public broadcasters,��and these Pan Am Games will be no different.

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In May 2015, Re:Sound, one of �䲹�Բ��岹’s various music licensing companies, published , a report about “the value of music to customers and businesses,” and the results are prominent: music does influence customers’ decisions. According to that report, 75% of��Canadians notice the music being played in bars and restaurants and 88% of Canadians enjoy hearing music in such establishments. Moreover, 80% of Canadians “feel that music in a bar [or] restaurant […] enhances their experience.” This appreciation often translates into very cogent actions such as making patrons stay longer, returning to the business in the future, and��recommending the place to others. Music, whether live or recorded, can be used as a powerful “marketing tool that adds value to businesses” and should therefore be carefully chosen.

This desire to hear music in eating and drinking establishments should emphasize, not trivialize, the source of that music. In fact, according to that report, “” Upon learning��that a business was not complying to music licensing laws,��almost 50% of Canadians would take some kind of action, including not recommending the establishment to others. And such reactions are not only true of Canadians. The report adds that��40% of��Swedish consumers would also have a negative opinion of a business if they discovered��it was using music illegally. Therefore, in order to take advantage of music as a means��to attract new clients, business owners must not only take in consideration what they play, but also its��legality. In Canada, that��means complying to the various rules surrounding performance rights.

�䲹�Բ��岹’s gives copyright owners the exclusive right to perform music works in public or to communicate them to the public by telecommunication. Such rights do not only include live performances but also the use of recorded music in a public setting. SOCAN (the Society of Composers, Authors and Music Publishers of Canada) and Re:Sound both provide business owners with multiple tariff licences applicable to various uses of music. Paying one copyright collective however licensees from paying the other.

�����䴡��'���� is a licence to play (publicly perform) live music in an eating/drinking establishment. The annual fee for this specific licence is 3% of the yearly compensation for entertainment, for a minimum of $83.65 per year. Compensation for entertainment includes the artist’s remuneration as well as any tips given by customers or in-kind contributions from the business owner (free meals, transportation, etc.).

, on the other hand, allows those establishments to play recorded music accompanying live entertainment. Licensees are required to pay 2% of the annual compensation for entertainment, for a minimum of $62.74 per year. Re:Sound's equivalent to this licence, , demands 0.9% of the aforementioned compensation, for a minimum of $37.64 per year.

is probably the SOCAN licence that applies to the highest number of businesses, as it covers the use of music for background purposes. The annual fee depends on the size of the establishment: $1.23 per square metre or 11.46 cents per square foot;��and a��minimum yearly fee of��$94.51. Seasonal establishments are only required to pay half of the aforementioned rate, provided they are operating under��six months per year, though��the minimum annual fee applies nonetheless. Keep in mind that paying for a streaming service or online radio will not exempt business owners from paying this licence (digital music services such as Spotify have reiterated this in their and do not allow, in most cases,��commercial use of their platform). However, no royalties will be collected for the use of a radio receiving set.

On the other hand, , the comparable Re:Sound tariff in this case, requires fees that can be calculated in : "1) the total annual tickets sold or admissions multiplied by $0.000831; or if that is not available, 2) the total capacity of the establishment, multiplied by the number of days of operation in a year, multiplied by $0.001558; or, if that too is not available, then 3) the area of the establishment in square metres or square feet, multiplied by the number of days of operation in a year, multiplied by the number of days in operation in a year, multiplied by $0.002597 (per m2) or $0.000239 (per ft2)."

Finally, �����䴡��'���� allows licensees to play recorded music for dancing. The annual fee is based on the establishment’s capacity as well as the days and months of operation. After a series of calculations based on those variables, the final number should be equal to the percentage required by SOCAN for this particular licence. , Re:Sound's comparable licence, also uses these variables to determine the required annual fee. The calculations will vary depending on whether the establishment can accommodate more than 100 patrons or not.

The Pan American Games will probably not have much of an impact on Toronto's already music scene, nor the way musicians are compensated for their work. But as they give restaurant and bar owners the chance to target a new consumer base, they also allow public performance rights to be discussed as an investment as opposed to a mandatory compensation. And as with most investments, rules need to be followed and content creators and performers��need to be remunerated.

��Aicha Tohry is an IPilogue Editor and a JD candidate at Université de Montréal.

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Currently, the US District Court is considering an appeal of the decision by the US Patent and Trademark Office (USPTO) to cancel six federal trademark registrations for the mark “Washington Redskins”. One of the by PFI is that the����(15 U.S.C. §1052), which allow the USPTO to decline to register a mark, are an infringement of their First Amendment rights. ��Recently, a SCOTUS case involving the Confederate flag on licence plates was added into the mix when the two sides in Blackhorse v Pro Football, Inc.��argued whether a trademark registration is a form of government speech.

On June 18th (less than a week before a hearing for Blackhorse), the Supreme Court of the United States decided . The Sons of the Confederate Veterans (SCV) wanted the Confederate flag on their licence plates and applied to a Texas program that allowed community groups to request the creation of specialty licence plates.��Texas denied their request on the grounds that many people find the Confederate flag offensive. SCV sued, arguing that the government’s rejection of their licence plate was an infringement of their First Amendment rights. In response, Texas argued that licence plates were a form of government speech rather than private speech, and that the First Amendment did not require the government to perform any speech that members of the public might wish them to perform. SCOTUS sided with the government, holding that Texas is not obligated to issue licence plate designs that it feels are inappropriate.

USA Today reported that in the hearing on June 23rd, District Court Judge Gerald Lee asked the parties .

The SCV case resembles��arguments the . The Department of Justice did not address the specific content of PFI’s marks, nor did it address whether or not the marks are disparaging, but it did address the constitutionality of the Lanham Act provisions. The Department argued that��refusing to register the mark did not preclude the owner from using the mark. Additionally, it argued that the act of registering the mark would imbue it with the government’s authority, making the registration a form of government speech rather than strictly private or commercial speech. Thus, the government would not be infringing the First Amendment rights of the mark owner by refusing to register it, but rather protecting the government's own right to choose which speech to perform.

The news report states��that PFI’s lawyer attempted to distinguish Blackhorse from Walker on the grounds that licence plates are more obviously government speech than trademark registrations, that is, issuing a licence plate bearing a��state’s name and a Confederate flag together can appear��to be a government endorsement of the owner's appreciation of the flag,��while��registering a trademark would not confer the same endorsement.�� "No one looks at a Coke can and sees the federal government speaking”, stated PFI's lawyer.

The lawyer for Blackhorse lawyer on the other hand, is reported to have argued that the reason for disallowing the licence plates and the reason for disallowing the trademark are strikingly similar. He also noted that a registered trademark allows the use of the circle-R, which does attach a level of government expression to the mark.

The fight to have PFI’s marks declared disparaging has been long and difficult, and it has taken multiple sets of Native American complainants to bring the case to this point. Regardless of the outcome of this hearing, it is likely that further appeals will follow, making the fight far from over. But current events suggest that Americans are particularly attuned to issues of race and symbols of disparagement at the present time. Hopefully��American courts will prove to be as well.

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‘Ambush marketing’ is a term coined in the marketing world to describe advertising that creates an association between a major sporting event and a particular product, service or business – without the event organizers being able to benefit from the usual lucrative sponsorship agreement. Traditional IP laws have not been much use in dealing with the more sophisticated forms of ambush marketing. Trademark law, for example, would prevent a company from using the trademarks of a major sporting event without consent (in the form of a sponsorship agreement), but clever ambushers do not need to use these trademarks to create associations with a high profile event. For example, when Germany hosted the FIFA World Cup in 2006, Air Emirates was the official airline of the event. Its competitor, Lufthansa, painted the pattern of soccer balls on the nose cones of its airplanes. The association was created without use of anyone’s trademarks. There are many other .

Event organizers – keen to extract the maximum in sponsorship revenues from sponsors – have long struggled against ambush marketing. There are at least two main types of ambush marketing, and a third is also gaining recognition. These are intrusion, invasion and association.

Intrusion and invasion occur when the trademarks of non-sponsors enter the spaces dedicated to the major sporting event, preserving spatial exclusivity for event sponsors. Intrusion occurs when branded items enter event venues on the person (or vehicles) of attendees. Invasion involves a more deliberate plan – perhaps by a group of attendees and perhaps organized by a non-sponsor company. A notorious example is that of the to a FIFA event in South Africa in 2010. Intrusion and invasion have long been addressed through ticket clauses that prevent ticket holders from wearing clothing bearing the visible trademarks of non-sponsors, and from bringing into the venue products (such as bottled water or soft drinks) bearing the trademarks of non-sponsors. The Pan Am/Parapan Am Games 2015 are no exception. Ticket specifically prohibit ambush marketing in clause 11(c) (“whether by invasion, intrusion or otherwise”), There are also restrictions on bringing food or drink into the venue. While this is in part to push attendees to purchase such items from on-site vendors, it also limits the possibility of non-sponsor items from entering TV camera sight planes. There are also separate restrictions imposed by organizers on athletes in terms of how visible logos can be on sporting wear and other equipment they use. Consistent with our wired age, the of the Pan Am/Parapan Am Games 2015 website also prohibit use of the website or any official social media sites for ambush marketing.

Ambush marketing by association is harder to deal with, particularly where it does not infringe existing IP laws. Major sporting event organizers (the IOC, FIFA, etc) have begun to pressure countries that bid for their events to put in place legislation to protect not only against ambush marketing by association but also ambush marketing by intrusion. Some countries have introduced event-specific laws; others, such as New Zealand, have introduced that can be applied to any event designated as a major event. These laws make it illegal to create an “association” with an event. Olympic-related legislation has tended to do this by, among other things, creating lists of words that, if used by advertisers, are considered problematic. In unitary states, such laws have also provided protection against ambush marketing by intrusion. Whereas previously event organizers could only control private spaces associated with the events through ticket clauses and other contractual agreements, such laws controversially restrict the use of non-sponsor trademarks and advertising in wide swaths of public space, including airports, public transit lines, public parks and streets near event venues.

Canada enacted its first anti-ambush marketing law for the 2010 Vancouver Winter Games. The commitment to do so was made to the IOC in the bid documents. The (OPMA) created a special status and special protection for Olympic and Paralympic marks. It also created a separate recourse against ambush marketing by association. Because Canada is a federal state, and the provinces have jurisdiction over property and civil rights, the law could not address ambush marketing by intrusion into the spaces around Olympic venues. This was done by Vancouver City by-laws, a number of which were by the B.C. Civil Liberties Association. As with other legislation of this kind, the statute created lists of words, the use of which were considered suggestive of ambush marketing. These included common words such as: Vancouver, twenty-ten, 2010, Whistler, gold, silver, bronze, winter, and so on.

Legislating against ambush marketing is of questionable value. Action taken by event organizers against small or local businesses (or women wearing orange dresses) can create a sense of public outrage that is perhaps more harmful to the goodwill associated with the event than ambush marketing itself. Further, as �䲹�Բ��岹’s bold Olympic ambushers illustrated in 2010, associations can be created by encouraging the public to celebrate “Canada”, and it is difficult to see how a major sporting event can claim any form of monopoly over displays of national pride. Anti-ambush marketing legislation may also raise interesting freedom of expression issues so far as it relates to small and local business making reference in their advertising to events taking place in their communities. Of course, small businesses generally do not have the resources to fight legal battles over marketing; once they receive a cease and desist letter from event organizers, they tend to cease and desist. High profile competitors of event sponsors, on the other hand, have legal departments at their service to vet their advertising campaigns to ensure they fit comfortably within legislative loopholes. The effectiveness of such laws is open to question; their overall impact may even be negative.

In Toronto’s bid to host the Pan Am/Parapan Am Games it promised to ask the federal government to extend the application of the OPMA to the Pan Am/Parapan Am Games (see , page 189). In other words, as with other major events, the promise of legislation to address ambush marketing was made a part of the bid. In this case, the extension has not materialised. Instead, the organizers have contented themselves with a series of official marks (a special category of trademarks available to “public authorities” in Canada). As far as local businesses are concerned, the organizing committee has issued on how to reference (or not reference) the games.

The approach seems far lighter than recent examples, although the Pan Am/Parapan Am Games are lower profile than the Olympics or FIFA events. But perhaps it is evidence of an important lesson learned: that there are limits to the use of law and legal institutions to address problems such as ambush marketing.

is the Canada Research Chair in Information Law at the University of Ottawa. Some of her writing on ambush marketing and the law can be found , and .

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