Commercial-scale piracy is a plague. If tolerated, over time it can destroy an industry.
A particularly troubling example is starting to take root in international sports broadcasting – particularly football.
The widespread piracy currently spreading throughout the Middle East has largely been ignored.
It has been overshadowed by a wider diplomatic dispute between the Kingdom of Saudi Arabia (KSA) and Qatar, and including the United Arab Emirates, Egypt and Bahrain.
Regardless of this geopolitical context, if left unchecked, the piracy we are seeing perpetrated threatens the future of international sports broadcasting around the world.
Let’s start with the basics.
Professional sports organisations, such as the Fédération Internationale de Football Association (FIFA), which organises the World Cup, depend in large part on the ability to sell exclusive broadcasting rights to generate income.
Without this stream of income, those organisations and the professional sports they support likely could not exist.
This is also true of sports events that require massive infrastructural investments — the Olympic Games, for example.
The ability to sell broadcasting rights, in turn, depends on the existence of exclusive rights of copyright.
As the noted international legal scholar Charles McManis rightly stated, “sports organisations must police their copyrights because of the immense value that rests within the exclusive right of broadcasting.”
Professor Daniel Gervais
The international legal framework is relatively straightforward.
Copyright law must comply with rules contained in the Agreement on Trade-related Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation (WTO), of which both Qatar and the KSA are members.
A fundamental principle of the TRIPS Agreement is that countries cannot discriminate against foreigners.
Under a rule known as ‘national treatment’, WTO members must provide ‘no less favourable’ treatment to nationals of other WTO members than they provide to their own nationals.
WTO members must also protect copyright and provide adequate enforcement options.
How are these rules applicable to the situation emanating out of the Middle East? FIFA has granted exclusive World Cup broadcasting rights in the Middle East to Doha-based beIN Sports.
beIN also has exclusive rights to the Premier League, Champions League and FA Cup final, among others.
beIN uses encryption to protect its signal and make it available to subscribers, as satellite and pay-per-view services do all around the world.
Ban on beIN
The diplomatic dispute between Qatar and Saudi Arabia, which began last summer, led to what is effectively a ban of the beIN service in the kingdom.
This normally would mean that this signal would not be available in the KSA.
Under international rules, WTO members are allowed to censor content, eg for moral reasons, but this is not censorship.
If there were grounds for legitimate censorship, the censored content would simply be unavailable, and KSA authorities would be expected to take action to enforce the ban.
However, the beIN signal isn’t censored in the KSA – after all, the signal is simply broadcasting football matches and other sports content.
Instead, beIN’s content is made available by a service widely available in Saudi Arabia known as beoutQ, which has found a way to decrypt the beIN signal, which it then transmits via ArabSat to its subscribers.
To do so, it sells decoder boxes embossed with the beoutQ logo, and subscriptions to the beoutQ service.
Tweets promoting the beoutQ service use the rhetoric of professional pirates who describe all intellectual property rights, especially patents or copyrights, as “monopolies” that must be dismantled.
And the satellite broadcaster, ArabSat (headquartered in the KSA), has reportedly refused to take any action to discontinue the pirated transmission.
beIN has tried to enforce its rights in Saudi Arabia only to find that it and other Qatari-headquartered international companies have no access to the legal system in that country.
There is little doubt that the professional broadcast of a match, with creative choices made as to which camera and which angle to use, the editing and selection of clips for replays, selection of shots, the use of split screens, commentary, etc., merits copyright protection.
As the World Intellectual Property Organisation’s (WIPO) (again, of which both Qatar and the KSA are members) guide makes clear, “rebroadcasting or cable distribution of a broadcast without authorisation and usually for commercial purposes including ‘bootlegging’ are acts of piracy.
The continued existence of the beoutQ service, ArabSat’s facilitation of that service, and the failure of Saudi Arabia (including its judicial system) to take action against this piracy likely amount to multiple violations of the TRIPS Agreement: by failing to provide national treatment; by failing to protect copyright rights in broadcasts and works contained in those broadcasts; and by failing to provide adequate enforcement options to beIN.
It is beIN that has been targeted for now for political reasons, but any international broadcaster could be next.
If this situation continues, the logical consequence will be that the sale of exclusive broadcasting rights to sports and other events will be significantly more difficult in the future.
Devaluing the key asset of rights-holders in the financing of many important events is self-evidently a threat to fans, athletes, and the organisations that support them.
Allowing pirates, and those facilitating those pirates, to get away with large-scale piracy for political reasons creates a poor precedent.
Multilateral rules are meant to avoid these unfair situations.
Those rules are being openly flouted and the future of international sports broadcasting is at stake.
* Professor Gervais is the Milton R Underwood Chair in Law at Vanderbilt University; president, International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP); and author of a leading treatise on the history and interpretation of the WTO TRIPS Agreement.
The author is writing in a personal capacity and was asked by beIN to provide his objective opinion on the situation described in the article.