Back of(f) the net? FIFA, football, and online streaming

As many readers will undoubtedly be aware, the most expensive football World Cup to date kicked off recently in Brazil with thirty two teams competing over the course of a month for football’s biggest prize. Millions of fans are expected to travel around Brazil in pursuit of World Cup festivities while billions more around the world follow the matches live on TV. In today’s digitally connected world many of these fans will tune in online, leading to predictions that this year’s World Cup will set new online records for the streaming of content.

For such a huge (and financially lucrative) event the organisers FIFA understandably aim to ensure that fans stick to legal, licensed broadcast avenues. In an effort to achieve this online as well as off FIFA have reportedly sent letters to the owners of prominent streaming websites, warning them of the potential consequences of allowing their sites to be used for illegal match streams.

In their letters however FIFA not only ask site owners to do all that they can to remove copyright infringing content but also ask them to put in place pre-emptive measures during the World Cup to make sure that this can be done swiftly. Allegedly this includes demands that both sites have staff present during each and every World Cup game to take down material and that they provide FIFA’s own enforcement company with the tools to remove any infringing streams directly.

With online streaming presenting an ongoing problem for many football rights holders (and with streaming increasingly becoming an important source of revenue for many other content creators) it is worth exploring whether the copyright enforcement measures demanded by FIFA can in practice be enforced. Can creators and rights holders really demand that intermediaries grant them control over content and commit to take-down times in the minutes?


These aren’t the kinds of streams that FIFA is worried about… Image is in the public domain by mandy

As a starting point to any such discussion it is important to establish whether online streaming infringes upon copyright at all. Fortunately, the European courts have provided some guidance in this area. Copyright grants its holders a number of exclusive rights including, most notably for streaming purposes, the right to restrict communication to the public of the protected work. The European courts were invited last year to consider whether online streaming qualified as a ‘communication to the public’ for these purposes and, in their judgement, came to the conclusion that it did. As such streaming a work falls within the exclusive rights of the copyright holder.

In the UK implementation of this decision however there is an important caveat that may undermine its impact. Section 73 of the UK Copyright, Designs and Patents Act provides a defence against copyright infringement for those who re-transmit by cable the content of a wireless broadcast made by any of the listed ‘qualifying services’ (a list which includes, in particular, TV broadcasts by the BBC or channel 3 – the two channels who, unfortunately for FIFA, will be broadcasting the 2014 World Cup games in the UK). The UK courts in this case found that streaming websites are able to take advantage of this section when re-transmitting live TV over the internet, although only to the extent that they are streaming to users in the region to which the original broadcasts were made. As a result, demands that streaming sites remove these channels may face difficulties on this ground.

soccer ball

It looks like a lot of people will be spending the upcoming month watching these very closely… Image made availble under CC BY-SA 2.0 by Glenn Harper

Outside of this particular exception however rights holders generally will have the right to prevent streaming websites making their content available to the public without permission. Nonetheless, while rights holders would be within their rights to demand the removal of their content by site owners what is not clear is whether they can insist upon the level of co-operation and access that are being sought by FIFA in their World Cup letters.

That infringing content appears on streaming websites does not automatically mean that rights holders can require these sites to take any action that they desire to prevent or remove it. A series of previous European decisions, concerning the filtering of copyright infringing content, has established that courts must strike a balance when considering the appropriateness of copyright enforcement measures between the intellectual property rights of the copyright holders and the protection of competing fundamental rights for the businesses and individuals affected.


Image is in the public domain by Jon Sullivan

In particular the courts have noted the need to weigh effective enforcement against the right of the intermediary to conduct a business and against the freedom of information of internet users. Demands such as FIFA’s must therefore be considered in this context.

In FIFA’s favour fall arguments that events such as sporting matches are time-sensitive and, as a result, the value of enforcement diminishes significantly if it can’t be carried out before the event is over. If the removal of links is delayed until hours or days later the majority of the loss from this will have already been suffered by the rights holder.

On the other hand, however, the owners of streaming sites could argue that requiring take-down times measured in the minutes (as FIFA’s demands would appear to require) would create such a burden on their resources that their business would struggle to survive. FIFA’s alternative – that site owners allow enforcement companies to take down content directly – is arguably even worse, as it would give a third party substantial control over the content of the site and allow them to govern what information flows through it.

Finally, any balancing act would have to take into account the availability of alternative means of protection. A large number of sites have been blocked at an ISP level in the UK and the Premier League has already demonstrated that it is possible to get streaming websites blocked as well. It may therefore be hard to convince a court that the burdens of the suggested enforcement actions are necessary while working alternatives exist.

Overall therefore it would appear that, while creators may often have the right to have their unauthorised copyrighted content removed from streaming websites, any demands such as those made by FIFA would be subject to a balancing test by the court: A balancing test that, it could be argued, they would struggle to pass.

In Search for the Voice of Visual Artists

A common assumption shared between professionals and academics alike is that no trade union exists for the visual arts in the UK. The Musicians’ Union, The Writers’ Guild of Great Britain and Equity are a few well known examples of unions in other copyright industries. However, when contemplating visual artists’ representation, one is more likely to think of DACS, the Design and Artists’ Collecting Society, which actively engages in copyright policy debates and regularly submits consultation responses to the Intellectual Property Office. Alternatively, one would consider AIR (Artists’ Interaction and Representation) or the information-rich web resource a-n.

Until 2001, it would have been factually accurate to claim that unlike the music, publishing or audio-visual industries, the visual arts sector in the UK lacked a trade union of its own. In 2001, however, the Scottish Artists Union (SAU) was formally constituted and in August 2013 its membership reached 1000. This is still a considerably low figure, particularly given the wide range of artistic work which falls under the ambit of the visual arts – from paintings, photographs, illustrations and cartoons to sculptures, ceramics, textiles and jewellery (to name a few).


Image dedicated to the public domain by Nemo

This relatively low figure could in part be explained by the fact that membership to the SAU is only open to artists who live and work in Scotland, including artists whose work is temporarily based there as part of an extended arts project exceeding 6 months. Furthermore, candidates need to demonstrate a portfolio of professional artistic practice in order to join the SAU. At the same time, comparatively low levels of membership could also be due to artists’ unfamiliarity with this relatively new organisation. A witty FAQ on the SAU website is indicative of the uncertainty among potential members when it asks ‘Is the SAU a proper Trades Union or is ‘Union’ just a name?’


Image dedicated to the public domain by stux

Nevertheless, the establishment of this organisation and its work programme seem to be a positive step forward given the general state of artists’ representation in the visual arts. In 2011, AIR and a-n conducted what they described as the ‘largest ever artists’ survey’, receiving 1457 responses from a wide range of UK based artists who were at various stages of their artistic careers.

According to the survey results artists felt that they were not sufficiently represented within the decision-making bodies involved in culture. With regard to their professional development, more than three quarters of all respondents indicated their need for assistance in identifying funding and resources for their projects, obtaining good practice documents, as well as meeting and networking with other artists, commissioners and curators. These are services which are typically provided by trade unions or other professional associations which represent the interests of creators.

Thirty per cent of the survey respondents went on to highlight other types of services that they had needed over the last 12 months, including financial advice but also advice pertaining to studio licences, contracts, copyright and other matters. This clearly highlights creators’ want for expert assistance in navigating the visual arts industry.

The need for more artists’ representation is something AIR had already picked up on and made the focus of further research, including research into international artist representation. AIR launched a Representation Working Group which engaged with the organisation’s members on the topics of collective organisation. Going through the published responses proved to be particularly insightful. Some artists defined representation as the process through which the value of the artistic profession and skills should be translated into policy and action. In line with this, respondents also highlighted the benefits of having access to experience and support through established networks.

Yet, from my perspective, one contributor in particular was able to accurately capture the inner conflict and perhaps uneasiness confronting many artists when it comes to collective action:

‘…even though I feel quite qualified to say what I think artists need I also feel acutely aware of the implications of speaking for others because we artists like to represent ourselves. Being in charge of how we define ourselves and our practices is central to making art, it goes hand in hand with determining what kind of work we do.’ Susan Diab

This should not, however, be taken to mean that artists do not need advice and guidance. On the contrary, the AIR survey clearly identified a gap in the provision of such services and this gap needs to be filled. In light of this, the creation of the SAU is a commendable endeavour.


Image available under CC BY 2.0 by Summer Skyes 11

Still, noting Susan Diab’s words, it would be exciting to investigate how this body tackles the challenge of representing visual artists and unifying the voices of many to produce a single powerful tone.