Every time the football season starts the subject of football rights and exclusive content crops up in many countries across the globe. The latest issue related to football rights came up this summer in Singapore.
A pay-TV broadcaster (SingNet) in Singapore has been told to let customers of a rival broadcaster (StarHub) access standalone Barclays Premier League (BPL) football coverage at the same price it charges its own customers, but has won the right to separately bundle that same content together with other content it offers exclusively to its own customers.
The Media Development Authority (MDA) (equivalent to the Broadcasting Authority in Malta) said SingNet was exempt from rules that would have required the company to cross-carry channels where BPL coverage was bundled with other content on a platform operated by rival StarHub. SingNet was, though, told to make its standalone BPL coverage available to StarHub subscribers on the same terms as it is available to its own customers.
The MDA said that its decision was justified in the interests of both the public and media industry in Singapore.
Media law expert Bryan Tan of Pinsent Masons MPillay, the Singapore joint law venture partner of Pinsent Masons, said that the cross-carriage rules “will eventually regulate the behaviour of those seeking to secure advantages with exclusive content deals”.
“As SingTel has now announced its higher pricing, the government has stood its ground in the belief that the rules will benefit consumers in the long run even though in the shorter term, prices have increased,” Tan said. “The logic seems to be that as long as SingTel wishes to cross-subsidise the exclusive content with its other content, it can do so but it must offer the exclusive content to customers of its competitors.”
“The government also signalled that it will be reviewing the definition of exclusive contracts to pre-empt attempts to circumvent the rules,” he added.
This issue of exclusive rights and competition as well as right of viewers stirs up so much passion and discussion. Small jurisdictions are the ones that seem to be at the mercy of the content rights holders who sell their content to whichever network offers the highest price in order to maximize their profits. Many of these sales of rights are done via “competitive bidding” where two or more networks compete for the same rights and the content rights holder awards the content to the highest bidder. It is one of the few markets that can be defined as a “sellers market”.
Many small countries feel that the issue of exclusive rights of content is a copyright issue and are trying to find ways and means of dealing with this. One interesting development is that of applying compulsory licensing to content.
A compulsory licence, also known as statutory licence or mandatory collective management, provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of arbitration. In essence, under a compulsory licence, an individual or company seeking to use another’s intellectual property can do so without seeking the rights holder’s consent, and pays the rights holder a set fee for the licence.
Article 11bis(2) and Article 13(1) of the Berne Convention for the Protection of Literary and Artistic Works provide the legal basis for compulsory licensing at international level. They specify under which conditions members to the Berne Convention may determine or impose conditions under which exclusive rights may be exercised, for example through compulsory licensing. The Berne Convention states that member states are free to determine the conditions under which certain exclusive rights may be exercised in their national laws. They also provide for the minimum requirements to be set when compulsory licences are applied, such as that they must not prejudice the author’s right to fair compensation.
Article 11bis(2) states: “It shall be a matter for legislation in the country to determine the conditions under which the rights mentioned in the preceding paragraph may be exercised, but these conditions shall apply only in the countries where they have been prescribed. They shall not in any circumstances be prejudicial to the moral rights of the author, nor to his right to obtain equitable remuneration which, in the absence of agreement, shall be fixed by competent authority.”
There are several different compulsory licence provisions in United States copyright law, including for non-dramatic musical compositions, public broadcasting, retransmission by cable systems, subscription digital audio transmission, and non-subscription digital audio transmission such as Internet radio.
Some countries are thinking of introducing compulsory licensing in their legislation to deal with this exclusivity issue. What would this in real terms mean? If for example the rights holder sold content to TV Network A in a country on an exclusive basis and that country had other TV networks such as network B and network C, then networks B and networks C would by national law be protected if they transmitted the “exclusive” content as long as they pay a fair and adequate price to the content holder.
The above compulsory licensing also carries its risks as the content holder might decide not sell any more of his/her content in compulsory licensing jurisdictions.
The subject of exclusive rights is a thorny one and various authorities around the globe are trying to come to terms with it and deal with it in a way which would be perceived as fair to both the media content rights holders and the viewers. Singapore has chosen to go one way while many countries on the other side of the Atlantic are attempting to deal with it in a different way. Only time will tell which is the best way to deal with exclusive rights.