On 4 May 2023, the European Commission issued a recommendation on combating online piracy of sports and live events (including concerts and theatre performances).
Following a 2021 European Parliament resolution on the challenges of sports events organisers in the digital environment, the Commission launched preparatory work to assess the issues related to unauthorised retransmissions of live events broadcast.
The Commission consulted various stakeholders, including holders of rights in transmission of live events (such as broadcasters and live cultural and sports event organisers), online platforms and intermediaries (such as internet service providers, hosting services, cloud services and content delivery networks) and public authorities at EU and national level. Discussions also took place with Member States in order to gather their views, in the context of the Copyright Contact Committee (an expert group in charge of assisting the Commission as to the implementation of Union legislation and programmes).
As a result of this consultation, the Commission decided to opt for a non-binding approach rather than a legislative instrument that the European Parliament and rightsholders were calling for.
What are the aims of the recommendation?
This non-legislative initiative is a toolbox to combat online piracy, which the Member States, national authorities, holders of rights and providers of intermediary services are called upon to use.
As highlighted by the Commission, some tools are already provided for in several existing binding provisions of Union law, in particular the e-Commerce Directive, the Digital Services Act (DSA), the Directive on Copyright in the Digital Single Market and the Directive on the enforcement of intellectual property rights (IPRED Directive).
The recommendation addresses the following main three areas related to unauthorised retransmissions of live events (including sports): ensuring prompt treatment of notices, injunctions and commercial offers and awareness and cooperation between public authorities.
Prompt treatment of notices related to unauthorised retransmissions
Given the specific nature of live events, swift action is crucial in order to minimise the harm caused by online piracy. To this end, the Commission encourages:
- the hosting service providers to cooperate with rightsholders in order to take urgent action during the transmission of live events, by (i) engaging with trusted flaggers and (ii) using technical solutions aimed at facilitating the processing of notices (such as application programming interfaces). This echoes Article 22 of DSA under which providers of online platforms shall give priority to notices submitted by trusted flaggers;
- the holders of rights in live transmission of events to use the best available technical solutions to facilitate identification of the source of unauthorised retransmission;
- the providers of intermediary services that are able to locate the source of the unauthorised retransmissions of live events to cooperate with the first two players, to make easier the identification of the source of unauthorised retransmissions and put in place measures against repeated misuse of their services.
Injunctions addressing unauthorised retransmissions
The recommendation considers how the legal remedies provided for in the IPRED Directive can be used to address online piracy, taking into account the experience of certain Member States with dynamic and live blocking injunctions that allow to fight more effectively against mirror sites.
In particular, the Commission encourages Member States to:
- provide for dynamic injunctions against (i) operators of unauthorised retransmissions of live events and (ii) providers of intermediary services which target users in Member States and whose services are misused by a third party for online piracy (regardless of their lack of liability);
- enable rights holders to apply for such injunction before the start of the live events;
- encourage the use of a case-by-case methodology for updating the list of internet locations covered by the injunction, including through the cooperation between the rights holders and the addressees of the injunction, subject to control by judicial and administrative authorities;
while pointing out several safeguards to ensure that these injunctions are appropriate, necessary and balanced, to ensure respect for fundamental rights.
Commercial offers and awareness and cooperation between public authorities
The Commission encourages incentives for live (including sports) event organisers and broadcasters to increase the availability, affordability and attractiveness of their commercial offers to end users across the Union. It also calls on Member States to raise users’ awareness on legal offers.
Cooperation among the relevant national authorities is another key subject of the recommendation, in view of the cross-border nature of piracy. They are notably encouraged to exchange information on the blocking of access measures following injunctions as well as encouraged to raise awareness and build capacity to facilitate investigations.
What are the next steps?
The Commission is expected to set up a monitoring system, in collaboration with the European Observatory on Infringements of Intellectual Property Rights (EUIPO Observatory), to assess the effectiveness of this recommendation by 17 November 2025 and the potential need for further measures at the EU level. This corresponds to the date when the Commission will assess the way that the DSA interacts with other legal acts such as the Directive on Copyright in the Digital Single Market.
The European Commission and the EUIPO Observatory have been urgently called by rightsholders to define clear key performance indicators and a robust monitoring system before the end of 2023 so the review of the recommendation’s effectiveness can take place without waiting.
What is the position in France?
In France, an act of 2021 introduced specific provisions aimed at stepping up the fight against piracy in the fields of culture and sport. Until then, there had been two main mechanisms: the graduated response, implemented since 2021 to combat illegal peer-to-peer practices, and the possibility for rights holders to take legal action to block illegal services.
The provisions of this act open up new prospects for rightsholders before the courts thanks to the possibility of obtaining the dynamic and live blocking injunctions under certain conditions. More specifically, in case of serious and repeated infringements (including infringements of exploitation rights for sports events), the rightsholders (or any other interested party legally determined) may bring a fast-track lawsuit to obtain all proportionate measures to prevent or remedy serious and irremediable infringement of their rights, against any person likely to contribute to remedy the situation (including providers of intermediary services).
At 31 December 2022, the French regulator Arcom had received complaints regarding 10 sports competitions for a total of 1,279 blocked domain names.
What is the position in the UK?
Although the European Commission’s recommendation will not cover the UK, the courts in the UK already regularly grant rightsholders dynamic and live blocking injunctions in respect of major sporting events, including Premier League and Champions League football matches and high profile boxing matches. However, the onus is on the rightsholders and their broadcast partners to obtain such injunctions from the court and the cost of obtaining and potentially implementing such injunctions will, in many cases, act as a deterrent for rightsholders taking advantage of these remedies.
One recent example of rightsholders successfully working with public authorities is the criminal conviction of five men for illegally streaming Premier League football matches. The prosecution was brought privately by the Premier League (private criminal prosecutions are rare but possible under UK law) but following investigations by Hammersmith and Fulham Council. The illegal streaming service had over 50,000 subscribers and had generated revenues of over £7 million. The five men received sentences ranging from eleven to three years.
The German law perspective
In Germany, online piracy of sports and other live events is also a steadily growing and therefore much-discussed issue. Various stakeholders see themselves confronted with an infringement of their copyrights. For example, the basic TV signal is protected by copyright as an independent film work. Therefore, broadcasting companies or film producers may find their intellectual property rights infringed. The event organiser, on the other hand, can invoke the domiciliary rights in the event of an unauthorised transmission of image and sound recordings taken within (or on) their premises without their consent.
From a procedural perspective, there are various instruments available in the fight against online piracy: court assistance can be sought in injunction proceedings, including even preventive injunctions if there are indications of concrete preparatory acts for corresponding copyright infringements in the near future. The aim here is to immediately stop or even prevent the illegal live stream from being made available to a broad public. In addition, the Copyright Service Providers Act (UrhDaG), which has implemented Art. 17 of the DSM Directive (EU) 2019/790 into German law, offers the possibility of obliging the online content-sharing service providers to block content that has been uploaded by users in violation of the law.
Under certain conditions, even immediate blocking is possible, which, again, can be particularly significant for the unlawful broadcasting of live events. The Telemedia Act (TMG) offers a further instrument. If the actual infringer cannot be prosecuted, the rightsholder can demand the respective service provider to block the use of such information that infringes intellectual property.
Osborne Clarke comment
Although various defence options against online piracy are already in place in France, Germany and the UK, the Commission’s further step to combat online piracy should strengthen and align these instruments further and is therefore welcome from a rights owners’ perspective.
Moreover, although not binding, providers of intermediary services are invited to take this recommendation into account when offering their services to recipients established or located in the EU, while preparing for their forthcoming obligations with the DSA.