News Access Guidelines – What’s the Fuss About?
By Nandan Kamath
ANY major sporting event is made possible through the commercial participation of sponsors, partners and broadcasters that are each granted certain exclusive rights and privileges by the organiser of the event in exchange for their financial and other support. Protecting the interests of investors in sport is critical to delivering them value which, in turn, provides them incentives to reinvest in the event in the future. In this manner, the sporting event can grow and bring greater value and innovation to all stakeholders, including fans and the viewing public.
At the same time, the media – newspapers, magazines, websites, electronic and other new media – also play an important role in driving the popularity of a sporting event and enhances the public’s interaction with the event, delivering news and information of newsworthy events in different voices and in the context of varied opinions. Given the important role played by the media, it is conventional for sports governing bodies to attempt to balance the rights of their investors and the privileges granted to the media in covering the events. This enables sports governing bodies to optimise value for the public by facilitating access to diverse sources of information. At the same time, it also protects against leakage of commercial value, thereby making commercial resources available for reinvestment in the sport.
While the protection of investors and event partners could be achieved by sports governing bodies if they were to rigidly enforce their respective rights under intellectual property laws, the positive role that the media is capable of playing in promoting the event is usually respected and recognised. This is particularly true when it comes to the use by news outlets of audio-visual footage of matches, a matter that is gaining growing significance.
No international sporting event of significance provides the news media free and unregulated access to match play footage. Unrestricted use would eventually make the event untenable and would ultimately materially compromise fans’ viewing experiences. Therefore, media accreditation and news access guidelines regulation, and the specific privileges and accommodations granted to legitimate outlets and distributors of news and current affairs content thereunder, are typically subject to the ‘fair use’, ‘fair dealing’ or ‘news reporting’ exceptions under copyright laws, in India and internationally.
In the Indian context, the contents of media accreditation and news access guidelines have become hotly contested for various marquee events. When international electronic news broadcasters reported the results of the Beijing Olympic Games 2008, they were not entitled to use audio-visual footage of the events or presentation ceremonies beyond what was permitted under copyright law’s ‘fair dealing’ principle without license from and payment to the official broadcaster.
In India, Prasar Bharati sent legal notices to numerous private news channels relating to use of Beijing Olympics footage and filed for an injunction in the Delhi High Court against these channels. The Court held that news channels must comply with copyright law in all respects as regards the footage.
Internationally, various news broadcasters’ codes of practice limit news reporting of sports events to the factual reporting of results and scores without any use of audio-visual match footage whatsoever. International case law recognises that over-use of match footage under the guise of ‘news reporting’ crosses the line into entertainment and, therefore, falls outside the ‘fair dealing’ exception under copyright law.
Indian courts have refused to conclusively decide objective standards under copyright law of when use constitutes a ‘fair dealing’ and when it does not (and is, therefore, an infringement). The courts have, however, agreed to enforce limitations imposed in agreements between rights owners and news broadcasters relating to quantity, currency and frequency of use of match footage and have clarified that, as a procedural matter, any news usage guidelines must be notified by the rights owner at least two weeks in advance of the sporting event.
Bona fide news outlets, whether newspapers, magazines, websites or electronic news channels, continue to be entitled to make use of proprietary sports content if it is used in compliance with the guidelines issued.
Usually, the media accreditation and news access guidelines are contracts entered into between and among the organiser of the sporting event, its exclusive broadcaster and licensees, and the news media wishing to receive stadium access and otherwise cover the event. The guidelines describe the accreditation formalities and processes for media personnel including photographers, newspaper and magazine journalists, electronic media and others, describe the manner in which they must behave within the stadium and also outline the appropriate uses of the content they generate within the stadium and the content generated by the event’s official broadcaster and other licensees.
The media accreditation guidelines limit use of the event’s proprietary content to newspapers, news magazines and websites that are primarily journalistic in nature. The guidelines also limit the activity and scope of what material can be published and provide that these media outlets should not commercialise the content, rather they should use it solely for journalistic and news reporting purposes.
The news access guidelines allow bona fide electronic news broadcasters to telecast a certain number of seconds of fresh footage from the event per regularly scheduled news bulletin subject to a maximum cap on use of footage per day. Further, the news access guidelines also impose a ceiling on the total footage that can be used each day as well as the repeats of footage per day in regularly scheduled news bulletins. The use of footage is limited strictly to regularly scheduled news bulletins and footage cannot be used in special or commercial programming. The use of live footage is not permitted under any circumstances and a reasonable delay is required from the live telecast. Archival footage can also be used for news purposes; however this footage is also subject to certain limitations of duration and repetition each day. The news broadcaster is also prohibited from associating third party brands with match footage and other proprietary content so as to avoid and ‘ambush’ of official sponsors. These measures are seen as necessary to maintain the integrity of official broadcaster, partner and sponsor relationships and they also fit in with the larger concept of ‘fair use’ and ‘fair dealing’, which are premised on primarily non-commercial journalistic uses of proprietary content in the public interest.
The restrictions imposed through the media accreditation and news access guidelines create some tension in the news broadcaster fraternity as news broadcasters continue to try and find new and diverse ways of running their businesses. With the popularity of cricket in particular, sponsored shows and segments, the insertion of logos and bugs over match footage, book-end advertising, advertising on score updates and other similar mechanisms are common place.
With Indian courts hesitating to impose objective standards and encouraging rights owners and broadcasters to agree on standards, the scope and contents of news access regulations are the subject matter of much back and forth negotiation prior to each major sporting event such as the Commonwealth Games, the Olympics, the ICC Cricket World Cups and the IPL. The relationship between rights owners and news broadcasters is complementary in many respects but competing in others and both continue to lobby from their respective positions. Rights owners recognise the value that the news media can bring to popularising the event and value their coverage. At the same time, they have granted certain exclusive rights to official broadcasters, the integrity of which they must protect. The balance between these competing interests is dynamic and must be carefully managed.
With this as background, issues such as the amount of footage per match that might be used, the delay necessary between the event and the news broadcast, the number of times footage can be repeated in a news hour, the grant of credit to the official broadcaster and the permissible limits on commercialisation of news broadcasts of match footage will continue to be hotly contested topics in the tug-of-war between rights owners and news broadcasters.
© The Sports Law & Policy Centre