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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On December 1, 2011, the involving English soccer superstar Wayne Rooney and his former agency, Proactive Sports Management Limited, over commission payments.  Among five issues the Court decided, the most important involved whether the agency was entitled to commissions from contracts it had negotiated previously, and whether the contract it entered into with Mr. Rooney was a restraint of trade.

As here on IP Osgoode, the plaintiff, Proactive, sued Mr. Rooney for the payment of commissions from an image rights representation agreement (IRRA) between Proactive and Mr. Rooney.  Mr. Rooney ended his relationship with the agency, but Proactive argued that they should still get their 20% commission from those continuing endorsements and advertising deals negotiated when Mr. Rooney was a client of their agency.  Since Mr. Rooney was only 17 at the time of the agreement, and both he and his parents did not appreciate the legal implications of the contract, including its relatively long term (eight years) and high, unchanging, commission rate, the agreement was .  Proactive was .

When considering the issue of whether Proactive was entitled to commissions, after termination, on those endorsements and contracts it had negotiated, the test according to Lady Justice Arden was a simple one: the right to commission was created whenever Proactive procured an endorsement contract.  Mr. Rooney’s counsel had argued that the idea of continuing commissions, even after termination of their agreement, would be unfair as Proactive would essentially be getting paid for not doing any work for Mr. Rooney at the time. Lady Justice Arden put this argument to rest when she stated that “it is the procuring of endorsement contracts that gives rise to the right to commission and not the ongoing provision of services.”  Proactive ought to be entitled to reap the benefits of the work that it did for Mr. Rooney, based on the agreement they had in place, regardless of how long those benefits may extend.

In fact, this should be a key incentive in an agent-client relationship: the client wants a long, lucrative contract, and the agent is motivated to negotiate one in order to be rewarded with the commissions. In addition to this, Lady Justice Arden also noted that practically speaking, Proactive likely had significant expenses to provide Mr. Rooney with the services he expected, and as such, would be counting on commissions from the contracts they negotiated to continue in order to be compensated.  Proactive’s appeal on this issue was therefore allowed.

However, Proactive did not have the same success on the remaining issues.  In appealing that the contract between Proactive and Mr. Rooney was not an unreasonable restraint of trade, the agency set out three arguments:

1. Mr. Rooney’s trade is playing soccer, not endorsements, and as such the IRRA could not restrain his trade;
2. The IRRA did not restrict Mr. Rooney’s earning potential, and in fact increased it.
3. Nothing about the IRRA made it unfair or oppressive, as had been required in previous case law on the issue such as in .

On the first argument, Lady Justice Arden noted that while Mr. Rooney’s primary occupation is soccer, “a person’s ancillary activity of exploiting his image rights is just as capable of protection under the doctrine of restraint of trade as any other occupation.”  Lady Justice Arden appealed to public policy, as she said that to the public, it would not matter whether someone’s potential is being restrained in their primary or ancillary activities – having potential restrained ought to be enough to be problematic.

Furthermore, Lady Justice Arden noted that except in very rare circumstances, the exploitation of image rights is by its very nature going to be ancillary to someone’s primary occupation.  This only further strengthened the reasoning that just because an activity is ancillary it does not naturally follow that the doctrine of restraint of trade is unavailable.

On the second argument, Lady Justice Arden referred to Schroeder in stating that “it is possible for a single activity…to be both creative and yet ‘sterilised’.”  In Schroeder, the argument had been made by the defendant that the agreement could not have been an unfair restraint of the plaintiff’s trade because it was a means for sharing his creative talent with the world.  Essentially, just because a contract brings someone benefit does not necessarily mean that it is not still unfair, as it may not fully suit the best interests of one party to the agreement.

On the third argument, Lady Justice Arden considered what was required to trigger the restraint of trade doctrine.  For Lady Justice Arden, the very unusual length of the contract (which she noted, at eight years, was about the average length of a soccer player’s career), the fact that the Mr. Rooney and his parents had no legal advice at the time of signing, and lack of bargaining power afforded Mr. Rooney despite being a “hot property” all pointed toward the agreement being oppressive.  From the disposal of all of these arguments, Proactive was denied its appeal on this issue.

After considering the rest of the issues on appeal, Lady Justice Arden and the rest of the Court decided that while Proactive was entitled to commissions for those contracts negotiated prior to termination, the agreement was an unfair restraint of trade and therefore nullified the claim for commissions.

The important lesson to take away from this case is not new: contracts must be carefully drafted and appreciated by all of the parties involved.  This means setting out, in as certain terms as possible, what each side intends by its agreement, and assuring that the other side understands what benefits or restrictions each term implies (which usually requires independent legal advice).  Perhaps a newer lesson that this case teaches us is that since a person’s reputation, likeness, and overall “brand value” could endure indefinitely, considerations must be made in the contract to appreciate that fact.  This would include paying particular attention to how long aspects of the agreement can extend into the future, what happens in the event that a party breaches or ends the contract, and what will occur when the contract naturally ends but the work and benefits of the relationship continue to live on.

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