Audiovisual exploitation rights for sport are not copyrights

In a 25th June 2013 judgment the Supreme Court clarified that the audiovisual exploitation rights of a football match cannot be deemed to be copyrights.

The Royal Spanish Federation of Football (RSFF) had assigned the audiovisual exploitation rights of certain competitions organised by it to Grupo Santa Mónica Sport, SA (GSM). GSM transferred the audiovisual exploitation rights of certain competitions – including the final match of the Spanish King’s Cup in the 2008/09 season (Football Club Barcelona versus Athletic Club of Bilbao) – to broadcaster Radio Televisión Española (RTVE).

RTVE broadcast the match and authorised certain local broadcasting entities to broadcast it, including Bilbao Bizkaia Kutxa (BBK), which installed television screens in the Athletic Club de Bilbao stadium to show the match.

GSM sued BBK for copyright infringement and breach of the Unfair Competition Act.

The claim was dismissed at first instance, but at second instance the Provincial Court of Vizcaya found there to be copyright infringement. BBK filed an appeal before the Supreme Court, which ratified the first instance decision and revoked the second instance decision.

The Supreme Court considered that the contract between RSFF and GSM did not entail related rights to copyrights and that no exclusive atypical rights giving GSM an ius prohibendi right (ie, the right to prohibit others from using its property, such as that arising from copyrights, patents, trademarks or industrial designs) were transmitted. The court states that ius prohibendi rights can be only typical – that is, they must come from an express legal provision.

According to the Supreme Court, the agreement concluded between RSFF and GSM gave GSM the power to carry out only certain activities defined in such agreement that could, if such faculties were used, give rise to copyrights (arising from the recording of football matches). The Supreme Court clarified that the production of audiovisual recordings generates copyright and its ownership. Thus, an agreement assigning audiovisual exploitation rights implies the faculty of such production, but if the production is not carried out, no copyrights are generated.

Hence, the attribution of ius prohibendi rights to GSM could not be inferred from the fact that the company was transferred certain faculties exclusively, since in the end GSM transferred the faculty for producing such audiovisual recordings to RTVE, which carried out such production and consequently acquired the status of producer of the recording. GSM's potential copyrights were exhausted as soon as they were transferred to RTVE.

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