Transcript Issues arising from broadcasting rights of major sports

Issues arising from broadcasting rights of
major sports events – The case of Hong
Kong
YAN, Mei-ning
Assistant Professor
Department of Journalism HKBU
At HKU IP, Media and Competition Law
Roundtable
11 January 2008
Disputes – previous and recent
Previous
disputes
BA handled 7 competition complaints,
3 concerned broadcasting rights of
sports events (all in 2004)
2006 World Cup
(No complaints filed to BA)
Issues:
-Joint-bidding,
-Exclusive
acquisition
- Sub-licensing
Mainly about
Broadcasters’
interests
Recent
disputes
2012 Olympics Games
Viewers’ interest?
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Broadcasting of Olympics Games in
Hong Kong
2008
and before
TVB and ATV (both free-to-air) got
HK TV rights through ABU
i-Cable (pay-TV launched in 1993)
got 2008 new media right
2012
General public
can watch
Olympics
TVB, ATV and NOW bid directly from IOC
(failed)
i-Cable (succeeded)
The issue:
Only i-Cable subscribers able to watch 2012 Olympics?
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POSSIBLE SOLUTIONS
The issue: how to ensure the public (majority of which
are not i-Cable subscribers) can watch 2012 Olympics?
Solution 1: i-Cable comes up with very
attractive subscription package
(most TV households in HK become
i-Cable subscribers) (market solution)
Solution 4:
The European Solution
(legal solution)
Solution 2: Grant a free-TV licence to i-Cable
(policy and market solution)
Solution 3: IOC incorporated in its contract requiring
i-Cable to sub-license broadcasting rights of some games
to free TV? (contractual solution)
Previous disputes
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Possible solution 3: sub-licensing
Previous disputes in 2004 and 2006
All evolved around
1) exclusive acquisition of broadcasting rights
2) Rows concerning subsequent sub-licensing
Sub-licensing
A contractual solution (between event organiser,
primary broadcaster and third parties)
Any legal aspects?
1) Should sub-licensing be mandatory? (guaranteed contractual
access to third parties)
2) Eurovision Case – intervention by the EC Commission
and ECJ of sub-licensing conditions)
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Possible solution 4: European solution
Broadcasting rights of major sports events
Exclusive deals (may not
violate EU competition law)
Sub-licensing conditions
closely scrutinized by the
Commission and ECJ
Regulation of listed events
Right to short reports
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Exclusivity – pros and cons
Exclusivity: (all broadcasting rights
of the event vested in pay-TV)
Competition law not intervening exclusive arrangements
- pro-competition; legitimate practice
- Important for sports events; good for TV market
- Respect of property rights and contractual freedom
Market approach
-Non-pay TV viewers deprived
of opportunity of watching the
event
-More and more pay-TV
exclusive arrangements
can create under-privileged
social groups in terms of
media and information access
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Exclusivity versus rights of the public
Exclusivity: (all broadcasting rights
of the event vested in pay-TV)
List regulation
(to protect public’s right
of access to major events)
Right to short reports
(To protect public’s right
to information)
Public’s right of access
to information?
Exercise of exclusive
broadcasting rights to be
regulated?
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Situations in the U.S.
No "anti-siphoning" laws to prevent exclusive
broadcasting of major sporting events on pay TV
FCC Sports Programming Migration
Final Report (1994)
Ruled out additional government action to
promote free access to sports programming
But not hesitate to act if there are threats to
broad and economical access to a variety
of sports programming
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List regulation (access of the pubic to
major events)
Individual European
countries (in UK since 1955)
European Convention on
Transfrontier TV (2002) Art.9bis
(Council of Europe)
Pan-European arrangements
TV Without Frontier Directive
(EU)(1997)
AV Media Services Directive
(Dec 2007) Article 3j
Controversial, initiated by COE in the 1980s
and followed by EC in the mid- 1990s
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Listed events (UK 1955)
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The English and Scottish FA Cup Finals;
The Grand National and the Derby;
Test cricket involving England;
The boat race (Oxford v. Cambridge);
Wimbledon tennis;
FIFA World Cup finals; and
The Olympics and Commonwealth Games
when held in Britain
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EU AVMS Directive (Dec. 2007), Art. 3j
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Each Member State may take measures to ensure that its broadcasters
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not broadcast on an exclusive basis
events of major importance for society
deprive a substantial proportion of the public
the possibility of following such events by live coverage or
deferred coverage on free television
Member state shall draw up a list of designated events
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Notify the Commission
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Commission publishes a consolidated list
Member state shall take measures to ensure its broadcasters
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not to exercise exclusive rights to defeat the purpose of the listed events
in another member state
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EU AVMS Directive (Dec. 2007), Art. 3j
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Events of major importance for society
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E.g. the Olympic games, the football World Cup and
European football championship
Criteria:
Free television
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broadcasting on a channel, either public or
commercial,
of programmes which are accessible to the public
without payment …;
(from Art.3a of TV Without Frontiers1997)
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EU AVMS Directive (Dec. 2007), Art. 3j
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Rationale:
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Actual effect:
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protect the right to information and to ensure wide access by the
public to television coverage of national or non-national events of
major importance for society
To avoid Football World Cup final only on pay-TV, the inauguration
of a new king or queen only on one single encrypted channel
The public may be guaranteed free access to the broadcasts of such
events
These events must be broadcast unencrypted even if exclusive
rights have been bought by pay-television stations
Assessment:
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Article 3a was useful, necessary, effective and proportionate (2003)
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Official Journal (OJ) C 183 of 02.08.2003
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European Convention on Transfrontier
TV (2002)
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Qualify as an event of major importance for society if at
least two of the following conditions are met:
– the event and its outcome has a special general resonance
in the relevant Party, not simply a significance to those who
ordinarily follow the sport or activity concerned;
– the event has a generally recognised, distinct cultural
importance for the population in the Party concerned and
in particular contains elements of its cultural identity;
– it involves the national team in the sport concerned in a
major international tournament;
– the event has traditionally been broadcast on free
television and has commanded large television audiences in
the Party concerned.
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Right to short reports (right of the public
to information)
Pan-European arrangements
European Convention on
Transfrontier TV (1989) Art.9
(amended in 2002)
Olympics
(TV News access rules)
AV Media Services Directive
(Dec 2007) Article 3k
Initiated by COE in the 1980s
and followed only by EC in 2007
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Right to short reports (right of the public
to information)
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EU AVMS Directive Article 3k
For the purpose of short news reports
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any broadcaster established in the Community has access on a
fair, reasonable and non-discriminatory basis to
events of high interest to the public which are transmitted on
an exclusive basis by a broadcaster under their jurisdiction.
Allowing broadcasters to freely choose short extracts…
Or establish an equivalent system
Compensation shall not exceed the additional costs
directly incurred
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EU AVMS Directive Article 3k
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Actual arrangments:
Short extracts may be used for EU-wide
broadcasts by any channel
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including dedicated sports channels and
should not exceed 90 seconds.
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Right to short reports (right of the public
to information)
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Background
increasing monetization of public events and proliferation
of exclusive broadcast deals for all kinds of public events
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threatens the ability of non-right holders to cover certain
newsworthy events
To avoid organisers censoring coverage of unfavourable
incidents
General interest news stories in addition to sports news
items can be reported
 e.g., terrorist incidents, disorder, injury to spectators,
attendance by public figures etc
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EU AVMS Directive Article 3k
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Aim:
safeguard the fundamental freedom to receive
information
ensure interests of viewers fully and properly
protected
promote pluralism through the diversity of news
production and programming
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Olympics News Access Rules (2004)
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Non-right holders
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Can only broadcast Olympic material supplied by Olympic news
agency in accordance to Olympics News Access Rules
Olympic Material can be broadcasted in regularly
scheduled news programmes
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In no more than three Programmes per day
Not exceed a total of two minutes in any one Programme
Duration
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not exceed one third of a particular Olympic event being reported on
and
not exceed thirty (30) seconds of each such particular event being
reported on
If previous Olympics Games material included, the duration will
be reduced accordingly
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Olympics News Access Rules (2004)
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Accredited Non-Rights Holders will have
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Access with equipment to all official press conferences
held in the Main Press Centre
Access without equipment to other Olympic venues (not
for Olympic events listed as ticketed high-demand
sessions)
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Broadcasting of Olympics 2012 in
Hong Kong: policy issues
Only i-Cable subscribers able to watch 2012 Olympics?
Policy issue: should the government ensure the public
(majority of which are not i-Cable subscribers) can watch
2012 Olympics? And how?
Grant a free-TV licence to i-Cable?
(policy and market solution)
US interventionist approach?
The European approach?
-sub-licensing conditions
-Listed events
-Right to short reports
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TV broadcasting of Olympics 2012 in
Hong Kong: policy issues
TVB and ATV
i-Cable
RTHK
Free-to-air, commercial,
big advertising revenues
from Olympics Games
(listed events X)
Pay-TV
(accessible? Reasonable rates?)
PSB? (future unknown)
No dedicated channel
(listed events X)
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Short news report of major sports
events – The case of Hong Kong
Olympics Games
news access rules
Informal arrangements
between stations
Any new arrangements
Modeled upon Art.3k of
EU AVMS Directive?
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End of presentation
Thank you