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Copyright, Designs and Patents Act 1988: Sporting Events

Volume 816: debated on Thursday 2 December 2021

Question for Short Debate

Asked by

To ask Her Majesty’s Government what plans they have to amend the Copyright, Designs and Patents Act 1988 to include sporting events.

My Lords, I have just had a message from the noble Lord, Lord Moynihan; he is in the debate in the main Chamber so will be a little late. He apologises but hopes to be here in time.

If you take a mobile telephone into a pop concert, a theatre or a cinema, or copy a book, and try to sell what you have filmed, then you have broken the law as set out in the Copyright, Designs and Patents Act 1988. If you go to a football match, a race meeting, a golf match, an athletics event or any other sporting event and do the same thing, you will not have broken the law as sporting events are not covered by the Act. When the Act was introduced, it covered original literary, dramatic, musical or artistic works, sound recordings, films and the topographical arrangement of published editions. I do not think that anyone foresaw in 1988 what new technology would be capable of, and clearly the Act needs to be reviewed and possibly revised.

In 1988 there was a view that sport did not constitute an intellectual creation. The reason why sporting events were omitted is that debate was focused on the individual sportsmen rather than the event, with the argument that the rules of sport left only limited room for creative freedom. However, it is the event, and the copyright in the event, that is important, and that is what is required. Copyright, one must note, does not exist until the event is captured in a broadcast or a picture. It is not the sport that I am concerned about but the event.

There are two reasons why reform is needed. The first is that sporting bodies are losing valuable media rights income. The second, which is just as important if not more so, is that the lack of copyright on events has resulted in a vast expansion of illegal gambling, leading to problem gambling and gambling harm. That takes some explanation, if noble Lords will indulge me. Illicit pictures are utilised by the black-market operators as a unique selling point to attract customers who are not subject to betting regulation. These operators have zero interest in protecting potential vulnerable customers. Sporting bodies in this country, from big football clubs to small race meetings, sell their media rights for broadcast on satellite and terrestrial television, which is then sold on, often to betting shops. The total sporting industry media rights are worth in excess of £1 billion. The largest amount obviously goes to the larger football clubs but then the money trickles down to grass-roots sports throughout the country.

In this country, terrestrial broadcasters are allocated low spectrum to transmit pictures, which results in a one-second or two-second delay between the live action and the broadcast. If you fly a drone that is linked to a camera and then to a mobile telephone, or use one or more mobile telephones to record an event, you can transmit those pictures faster than television pictures as mobile telephones use a higher-spectrum frequency and therefore have up to a two-second advantage. So rogue operators are selling live pictures at a discount, and sporting bodies are losing out from the resulting diminution of their media income. This means that, when they have to renegotiate media rights, they will be offered less.

Some of the large football clubs can stop drones flying over the stadium—that is quite easy. But it is impossible for many sporting events to do so, because the drones just film a yard away from being above the event and do not actually fly over it. It is possible but difficult to enforce against drones. You can stop them from flying directly overhead an event if you can find out who is actually flying them; the problem is that the operators just move the drone slightly further away, over a neighbouring property, and the cameras are so good that they can still film the event. The cameras have a really long range that they can transmit, so it is almost impossible to figure out how to stop them.

At some horserace meetings this summer, you could see eight drones flying in a preset pattern along the course. Someone would have come along in a van and unloaded the drones, let them fly up in the air and then driven away. They were following preset patterns loaded in, so there was no way in which to find the person responsible for them, because they would disappear on the day and do not come back until later. So it is an incredibly difficult thing to do. The problem is, because they are not actually flying exactly over the event, they are not breaking any of the air navigation rules as set out by the Civil Aviation Authority. It is not just drones doing this—there are multiple mobile telephones whose content is then aggregated. There have been instances whereby 30 students have been given burner phones and paid to go to a football match, hold them up and film the match, which is then streamed and aggregated somewhere in the ether and then sold on to illegal bookmaking sites.

We do not want to criminalise the sports enthusiast for filming his favourite sporting event—that is not the point at all. You cannot ban people from filming, and nor should you, but you can follow the money. We want to stop those who are selling the pictures on, and not only debasing media rights but affecting the growth of harmful gambling. Just to take horseracing as an example, it is a huge industry, and the amount of betting that goes on is probably worth about £9 billion throughout the year. It is very profitable for bookmakers, and millions flow back into the sport via media rights—that is true of all sports—and with racing through the horseracing levy.

The betting industry has done much to solve concerns about problem gambling, but there is more to be done. The Gambling Commission has been in the forefront of pushing for changes to prevent problem gamblers from using slot machines, casinos and betting shops or betting online. However, its important work is seriously being undermined by illegal gambling sites, which are often based abroad and therefore totally unregulated. There is no point in squeezing out problem gamblers from regulated sites if they can just as easily move to an unregulated site. The reason why they can do this is that the transmission of these sporting events is done by people who sell the pictures to illegal gambling operators in this country, which are not only unregulated but can easily be accessed via the internet in this country. You can put a bet almost anywhere you want in the world, so it is almost impossible to stop that unless you have some copyright. You have to be able to follow the money because, if you do not, it is really impossible. The illegal sites beat the bookmakers and betting shops by the two seconds when the broadcast is transmitted, because many bets are put on in the running or during a game. If you have a two-second advantage, although it might take someone like me a long time to put on a bet, if you are a clever person—and an addict, as it were—you can put on a bet very quickly, and that is what is happening.

I go back to the point that unregulated problem gambling is a very serious issue which has to be addressed. Assessment of recent statistics would suggest that illegal bookmaker betting in this country is now worth about £0.5 billion. There are probably over 400,000 customers using illegal betting sites in this country; it is a serious problem. I hope that the Government will consider, when they come to legislation next year, bringing sporting events into copyright protection. That would allow the Gambling Commission the power to follow the trail of the money and shut down illegal and problem gambling.

Gambling is a serious issue and there have been lots of debates about problem gambling. I note that the Minister’s colleague, the noble Baroness, Lady Scott, said in winding up a debate on the Coroners (Determination of Suicide) Bill the other day:

“Gambling is one of our society’s major ills.”—[Official Report, 19/11/21; col. 575.]

I hope that is not a reflection of government policy because I do not think gambling, whether in horse racing or any other, is a serious ill provided it is properly regulated and we regulate against gambling harm. Illegal gambling is the problem, not legal gambling.

I believe the Government could look at this. I note that copyright protection exists in France, Belgium and Italy, so I am not asking them to look at anything that does not exist in other countries. I hope the Government will look seriously at what is happening in Europe and see whether they can address this serious problem.

My Lords, not only noble Lords here but all sorts of other people will be watching this debate this afternoon, including racing as a whole, racecourses, owners, trainers, jockeys, honest punters and—yes, there are plenty—honest bookmakers, because it covers such an important threat to the revenues keeping them in business. Following the noble Viscount’s wonderful speech, I certainly do not want to drone on, but let me give a brief lay man’s account of what is going on here.

Go to a racecourse now and you can hardly miss the drones; there are perhaps eight or 10 of them flying about all over the course, so what is going on? As the author of a work of racing fiction—Counter Coup, in all good bookshops now, as it has been for the last seven years—I would not dare dream up so implausible a plot as the reality of what is going on. In a nutshell, what is going on is tech-assisted cheating. These days, you do not have to put a bet on a horse before a race starts; you can back horses “in running” as it is called. When drones come in, they can transmit pictures of a race seconds before they appear on conventional television.

So, Joe Bloggs is sitting at home in front of his TV. He sees the favourite lengths in front coming to the last and puts a big bet on at short odds that it will win. More fool him, because his drone counterpart is a few seconds ahead and he knows that the horse just fell at the last. Therefore, he can lay that horse for as much cash as he wants with no danger or difficulty of losing his money. He lays the horse and counts his winnings. Who loses? It is the punter who backed the favourite and racecourses which do not have copyright in the pictures and therefore cannot get any money from the pictures of the product they are supplying. There is less money for racing, less money for owners—I am an owner, so I can say that with some bitterness—and less money for trainers, jockeys and legitimate bookmakers, apart from a handful of often illegal bookmakers who may be in on the game.

This is not legitimate betting, to which I certainly have no objection. This is foul play, and it must be stopped. One way of doing so would be to give the racecourses copyright in all pictures so that at least the droners paid up out of their ill-gotten gains. Another would be to make such filming of sporting events a criminal offence. The Government will no doubt come to their own conclusions as to which route is the easiest. What is important is that they do not conclude that both routes are difficult and therefore do absolutely nothing about this scandal of legalised fraud.

My Lords, I seek your Lordships’ permission. I had no intention whatever of being discourteous to my noble friend but equally I was trying not to be discourteous to the Minister after I spoke in the debate in the Chamber on the humanitarian issues in Afghanistan. With the agreement of the Committee and of the Chair, I will hand over now and speak in the gap, just to emphasise the important point in chapter 4.32 of the Companion that speakers should be present for the opening speech. I sincerely apologise to the Committee for that being difficult on account of the other debate overrunning. I will give way to my noble friend, who will speak now, and with the agreement of the Committee I will speak in the gap.

My Lords, I am glad we have come to that agreement. I thank my noble friend Lord Astor for initiating this debate and the noble Lord, Lord Lipsey, for his colourful perspective, although, as he says, the solutions in these matters are never easy.

Like both noble Lords, I love racing, especially on the flat, and believe that elite sport broadcast here and around the world is important to UK growth, enterprise and soft power. Over the years, I have spent a good deal of time in Asia and Europe and have been struck by the power of teams such as Manchester United and indeed Manchester City, English cricket, Welsh rugby and of course the Derby to bring people together and attract wealth and investment into Britain.

I was Intellectual Property Minister for nearly three years—happy times—mainly under David Cameron, and I helped others to understand the evolution and importance of intangible assets such as those that we are talking about. Over 4% of our GDP in 2019 was invested in intellectual property rights, and of course copyright, which we are discussing today, is the biggest intellectual property right in economic terms.

At that time, we not only had the best IP regime in the world but we prided ourselves on good enforcement of the rights, which provided certainty for business, sport, inventors, scientists and the creative industry, while the Intellectual Property Office and the IP crime unit in the City of London Police led the charge against infringements of all kinds. Some of them were very dangerous, such as counterfeit airbags and website scams. I am delighted to see the noble Lord, Lord Stevenson of Balmacara, in his seat; we did a lot of work together on trying to get IP into a decent place, and to avoid the sorts of scams that we have heard about from my noble friend today.

One offending area was autovisual content, including live match footage, which could then be streamed in from abroad by, say, Greek or Asian providers for a very low fee but not be caught by the rules on copyright and the associated licensing because of the wording of an exemption in Section 72 of the Copyright, Designs and Patents Act 1988, which followed a confusing ECJ judgment in 2011. The beneficiaries of that state of affairs seemed to be from overseas, as in the racing example that my noble friend Lord Astor has raised. While some pubs might have been getting cheaper deals, they might well at the same time have been breaching copyright laws, which was itself a big cause of concern.

Like much to do with IP, this area is very complex, as we will discover when we seek to put our towels around our heads and solve the very real problem that has been raised today. On the issue that I have mentioned, after two painful consultations, we concluded that the right thing was to remove film completely from the Section 72 exemption. We made regulations in 2016 that seemed to do the trick and reduce lawbreaking. We put a review clause in, which is something I am always very keen on in regulations, and that review is now taking place. I recall this and mention it today because of its relevance and because it has been mentioned in the excellent briefing by the Library for this debate. My strong advice to the Minister on that one is to leave well alone, because it is very complex and you can go around in circles.

I listened to my noble friend Lord Astor, who raised a new horror that perhaps could be addressed by the right regulation of copyright, which is what we were doing on that occasion. This is exactly the sort of issue that the Intellectual Property Office, of which I am a great admirer, is good at tackling. Illegal gambling is for the DCMS, of course, but in my experience they work well together and should act as my noble friend Lord Astor suggested.

He has identified a very valuable and unfair two seconds. That was the thing that struck me—the delay that allows this profit to be a completely wrong accretion of value. It is a new online harm for us to wrestle with, and regulation is no doubt needed. That is why this debate is very timely, with the legislation on that issue coming forward soon.

I very much look forward to my noble friend the Minister’s comments and hope that the two issues we have raised are not in conflict.

My Lords, I again apologise to and thank the Committee for allowing me to speak in the gap. I will be briefer than I anticipated. However, I had the pleasure and privilege of reading my noble friend Lord Astor’s notes in advance of today’s Committee and I fully endorse what he said and agree with the position he has taken.

I well remember the discussions on the relevant Bill back in 1988, because I was then Minister for Sport in Margaret Thatcher’s Government and this subject came across my desk. It was at a time when sport was very much on the fringes of government. It was in the Department of the Environment and long before the days of extensive broadcasting rights, major television deals and the lottery. They were still years away. In fact, most of the work done then in the department was on the problems caused by football hooligans bringing shame to the national game and the country. Much has changed. The advent of sport as an intellectual creation was still to come. The commercial world I have just described really happened in the 1990s.

The speech of my noble friend Lord Astor that I read is absolutely pertinent, because we have to act on this now. The noble Lord, Lord Lipsey, was right. I will not talk about the gambling side of this. They both made a strong argument in favour of bringing sporting events into copyright protection. It is worth quoting the excellent brief by the WIPO:

“IP rights … and the legal protection they give … help to secure the economic value of sport. This in turn stimulates growth of the sports industry, enables sporting organizations to finance high-profile sports events”.

We already have precedent in taking action on exactly what my noble friend is looking for, when we brought forward legislation for the London 2012 Olympic Games specifically to protect the rights of the organising committee at that time. Only recently we have had legislation to the same effect with regard to the Commonwealth Games to be held next year. There is ample precedent for us now to consider this in the wider context of sport and to follow the ideas my noble friend raised.

I close by endorsing what he said, supporting what the noble Lord, Lord Lipsey, said, and apologising once again to the Committee. In nearly 30 years I have never missed an opening speech in a debate I intended to speak in. I would normally have scratched immediately but, given that I missed just a speech I had read, I hope I have the Committee’s forgiveness for being present in the Chamber for the winding up by the Minister, who referred to the speech I gave on the appalling humanitarian situation in Afghanistan. I end with further apologies and thanks to the Committee.

My Lords, I do not feel offended at all by what happened and am very pleased that we can accommodate the noble Lord’s comments and contribution to this debate. As regards our side, he can relax on that matter.

I am very grateful to the noble Viscount, Lord Astor, for bringing this debate forward. It is one of those areas that the more you look into it, the more complicated and complex it gets. Battling with advances in technology is bedevilling us in so many areas, and it has been very illustrative to hear the cases so eloquently put by both the noble Viscount and my noble friend Lord Lipsey. I also pay tribute to the Library for the briefing that it gave us.

On the protections being called for in this area, I think that we are all looking forward to the Minister’s comments on where we have got to in what is a very technical and complicated debate. I want to add from my perspective just how important sport in its broadest context is to local economies as well as national economies. The noble Baroness, Lady Neville-Rolfe, gave an assessment of travelling to the Far East. As a long-suffering Leeds United supporter who has been on trade missions to Malaysia and China, I found the collective memory in those places of how Leeds was a great team incredible—because, until they returned to the Premiership, the length of time that Leeds were out of the top flight was quite significant. I am talking about the direct trade talks I had as leader of the council with significant businesses and how important that contribution was. In my time as leader, I was able to secure the triathlon world series coming to Leeds as the UK venue, the television rights that came with that, and the exposure of the city and the whole region that came through securing the grand départ of the Tour de France. It is very difficult to put a value on the importance of that to the sense of well-being as well as wealth growth in our local communities.

I therefore recognise the World Intellectual Property Organization’s comments about helping to secure the economic value of sport and about how that, in turn, stimulates the growth of the sports economy, enabling sports organisations to finance high-profile sports events and providing the means to promote sports development. It is absolutely critical that we look at this through the lens of sports organisations, and we should of course recognise the benefit that the sale of broadcasting and media rights brings and that it is the biggest source of revenue. We should also consider how those funds can then be used to contribute to the development of sport at grass-roots level. Do the Government have plans to encourage intellectual property revenue being directed into the development of grass-roots organisations?

The Sports Rights Owners Coalition has argued that protection against rights infringements is

“key to a sustainable financing of both professional and grassroots sports”

and, as such, it has called on the Government to

“fully recognise, protect and promote the special nature of sport and sports rights”.

We have heard of course how the UK’s Copyright, Designs and Patents Act 1988 allowed organisations that do not charge admission to show television programmes to the public without permission from the owners of film and broadcast copyright in those programmes. The Act was subject to amendment in 2016, when “film” was removed from the list of exceptions. The Explanatory Note to the regulations stated that this change would ensure that

“Section 72 will only provide a defence against infringement (in the showing or playing of a broadcast) of the rights in a broadcast per se, and will not extend to any film rights in the broadcast”.

Five years on, does the Minister believe this change provided greater clarity, as was intended? What impact has this had on the wider licensing framework? The pertinent question for the debate is this: when will the Government publish the response to their review of these changes? If there is any sense of what options for action could follow, I would be very grateful for an understanding of where this is heading.

I thank my noble friend Lord Astor for tabling what has been a very important debate. I have certainly found it constructive, interesting and informative and am grateful to those Members who have contributed. First, let me make it absolutely clear that the Government are committed to supporting sports and sporting events, as well as athletes, spectators and all those whose livelihoods are dependent on the successful running of sporting events at all levels.

The Question for Short Debate tabled by my noble friend is

“to ask Her Majesty’s Government what plans they have to amend the Copyright, Designs and Patents Act 1988 to include sporting events.”

To address this directly, I should start by explaining that the main purpose of that Act is to protect creative works and intellectual creation, innovation and invention. For copyright, this includes original literary, dramatic, musical and artistic works, as well as films, sound recordings and broadcasts. Live sporting events and athletic performances are not eligible for copyright protection.

The main reason for this is that copyright must be an intellectual creation. I am sure that the noble Baroness, Lady Blake, would argue that some of the fantastic performances of Leeds United in the 1970s were intellectual creations, but I am sorry to tell her that, in general, sporting performances are not considered intellectual creations since the rules of sport leave only limited room for real creative freedom.

Proposals to have sporting performances protected by copyright provisions raise grave concerns about the development of sport—for instance, if an athlete were able to protect their performance, or an aspect of it, from being copied by other athletes. We can see how many difficulties would be caused by going down that route.

The owner of copyright in footage of sport is the person who films it, as they have creative control of how that race, game or event is filmed. The proposal before us of having a sporting event protected directly under the CDPA would reverse this, meaning that the copyright in any film of a sporting event would be owned no longer by the person who filmed it but instead by the event’s organiser or perhaps even its participants. This would represent a significant departure from the prevailing understanding of the purpose of copyright protection, which is to protect the creator and creative industries. This would not just entail reopening the domestic copyright framework; we would also have to consider whether there would be consequences for the UK’s obligations under international legal frameworks.

The CDPA, along with the Trade Marks Acts, forms the basis of an essential form of legal protection available to sporting events. For example, trademarks are valuable assets that can build confidence and loyalty in a business by protecting things such as names and logos. This is especially important in the world of sport, where sports clubs wish to engender a sense of pride and identity in their brand—such as Leeds United—allowing them to invest in and build up a reputation in their club names and logos and then control and commercialise official club merchandise based on that brand.

In addition, films of sporting events are protected by copyright, and this is how organisers of sports traditionally create and control the intellectual property linked to their events. Footage of sporting events allows clubs to license their match or race footage to broadcasters, which of course generates a crucial source of revenue for a wide variety of sporting enterprises.

Certain forms of sports data can also be protected by IP rights, such as database rights. Anyone wishing to use that data would need to seek the permission of the rights holder. That said, copyright does not protect facts themselves, including facts around sporting events—but it can protect how facts are expressed.

My noble friend Lord Astor and the noble Lord, Lord Lipsey, both raised concerns about the use of camera drones to film sports events and using their live streams to gain an advantage over official broadcasts and betting sites. The Gambling Commission regulates nearly all commercial gambling in Great Britain, including all sports betting, and has so far found little evidence that illegal drone filming is linked to illegal gambling sites. The commission can take action against illegal operators, using its relationships with web-hosting companies and payment providers to disrupt these websites.

It is true that filming or recording sporting events is often prohibited under conditions of entry to sporting venues, as it is in cinemas. Drones may be one way of bypassing conditions of entry. The Gambling Commission believes that using unauthorised drones, much like using unauthorised phones from inside venues, is driven primarily by gamblers who are in-play betting on legal sites seeking an advantage from information that is more up to date than that available to operators or other betting exchange users who are watching an official broadcast. However, this type of courtsiding and other forms of illicit filming are not considered an offence under the Gambling Act.

Furthermore, the commission’s sports betting intelligence unit works closely with the betting industry, sports’ governing bodies and the police to protect the integrity of sport and betting. The unit will determine the most effective course of action in each case. This can lead to further investigations being carried out by the commission or the police. The commission also supported a police-led initiative on drone use in racing and invited the UK national police adviser to speak at a sports betting intelligence forum. The commission already requires gambling operators to have policies designed to manage betting integrity and regulatory risks within in-play betting.

The Government are determined to take steps to help sporting events put a stop to organisations and activities that support illegal gambling and the unauthorised use of footage protected by copyright. The Gambling Act review is taking a comprehensive look at gambling regulation in Great Britain to make sure that it is fit for the digital age, including looking at the powers the Gambling Commission has to tackle illegal operators. The Government recognise that these are issues of genuine concern to the businesses that have raised them, but they have not yet seen sufficient evidence of any harm arising to justify any intervention at this time, much less an unorthodox expansion of the copyright regime.

The Government would of course be open to receiving further quantitative evidence on the matter. If the businesses concerned were able to make a better case for government action, backed by persuasive data, of course we would consider what measures might be effective. However, an expansion of copyright-like protection in the way proposed is in our view simply not viable. Not only would it be a significant and unprecedented development, with unknown impacts and unintended consequences, but it would move the globally well-established scope of copyright well beyond the protection of creators and creative industries and fundamentally alter the nature of what subject matter is protected.

I thank my noble friend Lady Neville-Rolfe for her observations on Section 72 of the CDPA. The Government are currently analysing the review of the section and we will publish our findings in due course. I fully agree with the noble Baroness, Lady Blake of Leeds, that sports and sporting events, including grass-roots sport, are of crucial benefit to all levels of the economy. IP can and does provide sport with opportunities to develop and promote revenue and we fully agree that promoting IP rights is crucial to this. As I mentioned previously, the Government are analysing the review of Section 72 of the CDPA and we will publish our findings in due course. I also thank my noble friend Lord Moynihan for his contribution and for his experience in this field.

I end by again thanking my noble friend Lord Astor and those who have contributed to what I think has been a very good and informative debate today.

Committee adjourned at 4.40 pm.