By Richard Wee and Samuella Kong
Assisted by Bryan Boo and Saphna Ravichandran
Sports and media have an intertwining relationship whereby it is not wrong to conclude that without such media coverage, sports may never have developed to its current position today. Traditionally, one would expect to be at a stadium or the sports arena to watch the game. Nonetheless, through broadcast and in recent times live streaming, billions of people have access to many games, watching it from anywhere in the world. Sports broadcasting and live streaming is without a doubt a game changer in the expansion of the sports industry. Its’ significance can be seen from the recent football World Cup Final between France and Croatia in Russia; physically witnessed by an estimate of 80,000 spectators, but incomparable with the 44.5 million people who watched the Finals via BBC alone.
Sports associations like FIFA generally own the tournament and recordings of the event. Huge funding is invested into building up internet platforms that support the diversification of material use into TV programs, match interviews etc. which in turn creates employment, opportunities and further develops the sports mania. The rights to broadcast games are then licensed out to third parties like BBC and Fox Sport who act as content providers for the consumers. In Malaysia, it is common to hear of Astro or Radio Televisyen Malaysia (RTM) having purchased the rights to broadcast certain sporting events.
Taking things online
In recent times, the phenomenon of live streaming through the internet has become relevant in sports broadcasting. The Cambridge Dictionary defines it as an act ‘to broadcast video and sound of an event over the internet as it happens’. As such, copyright law plays an important role in ensuring that such liberties are not exploited.
Copyright law in Malaysia automatically grants an owner of a work exclusive rights for a specific period. In regards to broadcasts, where the author must be a qualified person, the work need only be recorded and published in Malaysia to warrant copyright protection. Under s15 of the Copyright Act 1987, the rights afforded include ‘the recording, the reproduction, and the rebroadcasting, of the whole or a substantial part of the broadcast…’ which is ‘recognisably derived from the original’.
The main issue of live streaming is that it potentially damages the broadcaster’s investment whereby the benefits of exclusive rights owed to them fail to tally with the expected output. This is largely when the material is distributed without a license to use which is akin to piracy. In terms of revenue earned by broadcasters, these media rights are one of the biggest contributors when comparing with other aspects of sports like sponsorship and merchandising.
In Malaysia, such acts are potentially illegal under s41 of the Copyright Act 1987. The extent of protection in the sports context remains unclear as there currently exists no reported cases surrounding the area in Malaysia. As such, consideration shall be given towards UK courts and their decisions.
The case of England And Wales Cricket Board Ltd & Anor v Tixdaq Ltd & Anor comes to mind. Similar to Malaysian law, the criteria for infringement is based on substantiality of protected material taken by the content provider. This case was unique in that it addressed the recent fad of Snapchat, where short clips taken by the user are uploaded onto the site for a temporary period, which was later mirrored by other social media sites like Instagram and Facebook Live. Here, Fanatix compiled 8-second long clips of sporting event highlights filmed by its users via handphones from the television and published them onto their website. Justice Arnold held that while ‘citizen journalism’ could possibly fall within the ambit of the fair dealing defence for the purposes of reporting current events, the predominant purpose of Fanatix’s service was to facilitate the sharing of the clips between users which was ultimately a commercial exploitation of the intrinsic value of the clips. This case illustrates that a mere 8 seconds out of a 90-minute football match is a qualitatively substantial amount to constitute piracy.
If the above case were to be applied in the Malaysian context using local law, a fair dealing defence is mirrored in s13 of the Copyright Act 1987. S263 of the Communications and Multimedia Act 1998 could also potentially be used to address ‘citizen journalism’. While it would be impractical to focus on curbing the growth of the social media trend among users, the law can address content providers’ licensing rights. Licensees are bound by law to ensure that their network and service are not involved in the commission of any offence, including those governed under the Copyright Act 1987. This bypasses the need to consider the mediums used by users to record the sporting event and is applicable so long as the content is uploaded onto the content provider’s network.
This is further reflected in the case of The Football Association Premier League Ltd (“FAPL”) v British Telecommunications plc & Ors (BT) where streaming servers were given ‘live’ blocking orders. This is an instantaneous and automatic order that comes in force upon the streaming of live broadcasts by servers, whereby it re-sets each match week during the Premier League season. This is pivotal in that blocking orders are no longer limited to blocking infringing websites permanently, avoiding the risk of ‘over-blocking’ streaming servers. The host providers must also be notified every week when one of its IP addresses are subject to blocking, providing them the opportunity to set aside the Order. This Order has been so effective that it has been further extended to the 2018/19 Premier League season.
In effect, copyright holders have greater security in terms of their work. Associations like the FAPL are responsible for nurturing society’s interest in sports. Therefore, it is in the public’s interest that more protection be granted to them. While streaming servers would face a decline in site traffic, it would be unethical for them to benefit from the fruits of rightholder’s labour.
While theoretically enforcing parties can attempt to interpret legislation according to the spirit of the law with the help of experts, Malaysian copyright law remains untried in light of the social media boom in sports-related matters. Despite this, the legislature and judiciary can take example from UK courts in their flexibility when balancing broadcaster’s lawful rights, live streamers’ limited rights and the public’s right to information and entertainment.
Esports: A side note
The above discussion is generally applicable to all forms of copyrighted work. However, the application of such stringent intellectual property rights protection may ultimately lead to the breaking down of the entire esports sector, much of its popularity creditable to its accessibility online. During the Electronic Sports League (ESL) One Genting tournament 2018, ESL issued a Digital Millennium Copyright Act (DMCA) Takedown notice to Twitch, essentially banning the streaming activities of the largest live streaming site for esports. Fans and players threatened to boycott the tournament as the contracted platform, Facebook Live Stream, displayed technical issues and failed to meet the demand of the fans. However, the game publisher Valve later released a statement emphasising that only they have the authority to issue a DMCA takedown notice and non-competing streamers are permitted to stream the game.
It is questionable whether tournament organisers have the right to grant broadcasting rights to streamers as the intellectual property rights of the game belong to the publishers. However, as illustrated in the case above, limiting broadcasting rights may have adverse effects on the growth of esports. Such limitations also affect the livelihood of streamers and casters (commentators) whereby broadcasting/streaming may be their main source of income. As such, the conventional rules discussed in this article may not apply to esports as the rightholder potentially gains from widespread streaming as much as the streamer does. It popularises the game and allows the mechanics of esports to move. This is illustrated by Valve’s decision to allow public streaming.
Snapshots worth capturing: A Conclusion
Sports is brought to life by the unpredictability of the game whereby no two matches are the same. Without which, taking football as an example, it would simply comprise of grown individuals kicking around a ball. Consider the moment when the audience holds its breath in anticipation of the goal which then releases a flurry of acclamation upon the ball thumping against the net. It is that moment of electrified silence followed by an eruption of cheers and groans that defines the uniqueness of a sporting event, differentiating sports from all other media content.
The law aims to control the use of specific sporting moments which are arguably more significant compared to the rest of the match. Better known as ‘highlights’ in sporting diction, these snapshots of matches comprise of the scores and the fouls, the spectacular showmanship displayed by athletes and the skill sets inherent in professional sports competitions.
While ‘living in the moment’ and recording live instances of social media-worthy moments may be the new trend, it fails to justify the content being wrongfully stolen as a means of improving the live streamer’s worth, devaluing the original broadcast. It is imperative that the law protects these highlights as the media enriches and expands the boundaries of sports in this world, whereby it plays a vital role in shaping the future of sports. In regards to esports, the main purpose of the law remains the same, which is to protect the rightholder’s interest while allowing the growth of the sport. In this case, this is best done by taking a more flexible approach compared to conventional sports streaming, by allowing greater public streaming as long as it does not diminish the publisher’s rights.
 ‘World Cup in Numbers’, Mark Fleming [16 July 2018] The Sun
 Section 10 of the Copyright Act 1987
 Section 7 of the Copyright Act 1987
 Section 9 of the Copyright Act 1987
 FAPL v BT  EWHC 480 (Ch) [para 24]
 FAPL v BT  EWHC 480 (Ch) [para 25]
 As per the conventional measure in s97A of the Copyright, Designs and Patents Act 1988
 ‘Illegal Sports Streaming and the Rise of ‘Live’ Blocking Injunctions’, Lee & Thompson
 ‘Dota 2 players plan boycott of ESL pro games on Facebook after Twitch bans (update)’, Julia Alexander [25 January 2018] Polygon