Interface Between Intellectual Property Rights and Sports
Sport in today’s world is a great source of entertainment and commercial business. It has become a great phenomenon worldwide. It has a huge influence on every section of society. It develops through the social culture thereby connecting with people on different aspects. Now a day’s sport is not just a fun and recreation for people, it has become a source of income and competition among the respective game players. Various corporates and people earn a huge profit in sports by engaging in broadcasting, merchandising, media, sponsoring, etc. The sports industry has a growing impact on the world economy, creating jobs, investing in public infrastructure and mobilizing resources.
Innovation and creativity are key drivers in the world of sport. In every sporting field, inventors and creators are working behind the curtain to push the boundaries, creating new opportunities for enjoyment and for athletes to better their performance. The talk of innovation and creativity gives rise to the introduction of Intellectual Property Rights in the field of sports. WIPO defines Intellectual Property (IP) as creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce.1The IP gives the creator or inventor exclusive rights over the creation or invention for a certain time period. The main purpose of IP is to bestow the creator or inventor with the protection of his rights against the infringers or ambushers (in case of sports). IP rights allow the creator to exploit his intellectual property to earn exclusive profits in the market, thereby providing an edge in the market.
Commercialization of sports has introduced a great application and importance of Intellectual Property Rights in the field of sports. Sport shows intellectual property (IP) in action. With growing competition, the need to protect individual and team interests is a must so as to prevent others from walking over one’s rights, for example, ambush marketing. Every aspect of intellectual property (IP), whether it is trademarks (including personality rights), copyrights, design or patents, form an integral part of the commercial sports industry and thus require protection in order to circumvent any complications that may arise.
Patents give rise to new innovation and developments in technology in sport. From the sports shoe to the swimsuit and the tennis racket to the football, technology has helped to develop creative, better and safer equipment in the quest for sporting excellence. Techno-advancement has resulted in enhanced and effective sports equipment, helping sports enthusiasts everywhere to enhance their performance and a multiplicity of ways to experience sporting events anywhere and at any time. These technology creators or inventors protect their property by patent system under intellectual property (IP). For example, William Taylor of Leicester, England, patented the idea of dimple markings on golf balls in 1905. The dimple pattern maximizes lift while minimizing drag.
Trademarks, brands and personality rights encourage the distinctiveness of events, teams and their gear. Nike, Adidas, Reebok, Reliance, etc. all companies brand their products in sports events and sponsor various teams seeking to build their reputation and develop deeper customer relationships, which offers massive exposure to their brands to millions of fans and viewers all around the globe. They are central to many sports business transactions, especially sponsorship deals and product merchandising. And at the heart of branding lie trademarks. The prominent display of trademarks at prestigious sporting events or sponsorship of a prestigious sports event, such as the FIFA World Cup™ or the Olympic Games, can link a company or product to the prestige, youth and dynamism of that event. Henceforth, increase in sales by appealing to the aspirations and emotions of sports fans, who are drawn to signs associated with a given club or sport. The intellectual property (IP) system, and trademarks, in particular play a pivotal role in safeguarding the unique character of flagship sporting events such as the Olympic Games, FIFA World Cup. The Olympic symbol is protected by the Nairobi Treaty on the Protection of the Olympic Symbol – one of the international treaties on IP administered by WIPO. Any state that has signed up to this treaty is obliged to prevent registration of any such sign or mark consisting of or containing the Olympic symbol. Sporting Celebrities can also register their names or nicknames, poses, slogans, signatures, or another insignia for which they well known, as a trademark so as to prevent their unauthorized use. For example, Usain Bolt’s “Lightening Bolt” pose and his “to di world” slogan are registered trademarks and Cristiano Ronaldo has registered his goal celebration as trademark. These all rights of sports athletes come under the ambit of personality rights. Under Indian trademark law, a person can register trademark over his/her name. One such example would be Sachin Tendulkar. The Delhi High Court in ICC Development (International) Ltd v. Arvee Enterprises and Anr2, has rightly held that the right of publicity vests in an individual and he alone is entitled to profit from it.
The field of Sports is full of images and aesthetics, everyday new materials and equipment with different designs emerge in the market like athletic shoes, sports bags and sports apparel such as swimsuits, gym, tennis wear, cricket bat, etc. The influence of design in the world of sport is far-reaching, companies are placing more value on protecting aesthetic designs as well as improved technology. Therefore, for protecting such articles with unique visual ornamental characteristics against illegal copying or piracy, registration under design system of IP is the best option for proprietors.
Copyright in sports may vest in various components of sporting events including in the artwork connected to the logos and trademarks, promotions, slogans, images of a player or event etc., which may be protected in India under the provisions of the Copyright Act, 1957.3 Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity.4 Broadcasting right is also form of copyright owned by companies which invest in the costly undertaking of broadcasting sports events to fans all over the world and in return generate the revenues from it. Moreover, considering the copyright protection for sport events such as football or cricket, the question which evidently arises is of authorship. Who is the author? The player executing the trick, all the players involved in an action as joint authors, or the coach as the director of players’ performance? According to some jurists and experts, the primary sports rights owners are evidently the event organisers or the governing body of the sport. Event organisers often contractually or otherwise grant rights in specific properties in the event to other entities like broadcasters, franchise/team owners, sponsors, partners and service providers. Further, the sportspersons participating in the event can also be considered sports rights owners in certain circumstances relating to the use of the sportspersons’ name, image or persona without licence or authorisation.
Under the copyright protection, another question which rises is that can move of players be copyrighted. Almost all the games have been played for many years, and standard rules and bye-rules are laid down which is well-known, and so when an athlete is finding his own move to play the game differently, then it is a work of art, skill and judgment, which gives its creator an added advantage over their opponents. This move often decides the fate of the game and hence providing special protection to the so-called “signature moves” is reasonable. Under Indian copyright law, the move of a player should be protected either under performer’s right5 or under cinematograph film6. The player in a sport is no more than a performer7 under the definition given in Indian jurisprudence; as he is a person who is making a performance on the sports field.
Ongoing through the various aspects of Intellectual property and sports it can be noticed that sport is way more dependent on IP rights in today’s world. But, too much IP is a bane for the field of sports. Sport cannot be reduced to its economic dimension only. On the contrary, sport an important socially relevant activity due to the educational function it upholds, particularly for the youth. It is one of the primary sources of leisure. Players on the field create a bond and connection throughout the gameplay which would be hugely affected if IP rights are given way more priority. Some proponents of protection argue that granting rights encourages improvement and that sportspeople would be more inclined to come up with new moves if they were rewarded in this way. This argument does not hold up. Sportspeople are competitive by nature and are continually striving to be the best in their field. Further incentive is not required. Hence, there is a requirement to balance the public and the private rights to the success of both the fields and satisfy both economic and entertainment needs.
1 Wipo.int. (2018). online Available at: http://www.wipo.int/publications/en/details.jsp?id=99 Accessed 16 Jan. 2018.
2 2003 (26) PTC 245
3 Mondaq.com. (2018). Intellectual Property Rights in Sports-Indian Perspective – Intellectual Property – India. online Available at: http://www.mondaq.com/404.asp?404;http://www.mondaq.com:80/india/x/164974/Trademark/Intellectual+Property+Rights+In+SportsIndian+Perspective&login=true Accessed 18 Jan. 2018.
4 Copyright.gov.in. (2018). Frequantly Asked Questions: Copyright Office. online Available at: http://copyright.gov.in/frmfaq.aspx Accessed 20 Jan. 2018.
5 Section 38, Copyright Act, 1957.
6 Section 2(f), Copyright Act, 1957.
7 Section 2(qq), Copyright Act, 1957.