Intellectual Property and Sports

Name: Intellectual Property and Sports | Essays in Honour of P. Bernt Hugenholtz
Brand: Wolters Kluwer
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Essays in Honour of P. Bernt Hugenholtz

Martin Senftleben Joost Poort Mireille van Eechoud Stef van Gompel Natalie Helberger(Editor)

Wolters Kluwer (Publisher)

Published on 2. September 2021

480 pages

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978-94-035-3753-5 (ISBN)

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Content

Intro
Title Page
Copyright Page
Contents
List of Authors
Part 1: Starting Whistle
Introduction: An Information Law Approach to Intellectual Property and Sports
Part 2: Players and Sporting Achievements: Copyright and Celebrity Rights
Protection of Sporting Achievements per se in Particular by Copyright Law: Some Notes about Justifications and Proper Boundaries
1. Introduction
2. Copyrightability of Sporting Achievements per se
3. The Asser/IViR Report on Sports Organisers' Rights in the EU
4. Relevant Case Law of the CJEU
5. Conclusion
Post Scriptum
Get a Move On: Copyright in Movement
1. Testing the Copyrightability of Sporting Movement
2. Moves as Ideas
3. Moving in Digital Steps
4. The Moving Subject
5. Moving to a Conclusion
Copyright and Choreography: Exploration in Three Acts Marie-Christine Janssens
1. Prelude
2. First Act
2.1Warming Up (Definition)
2.2Setting the Scene (Statutory Framework)
3. Second Act
3.1Port de Bras (Requirements)
3.2Développé (An Expression)
3.2.1At the Barre (A Fixation)
3.2.2Interlude with a Cheese Snack
3.3Enveloppé (Originality)
3.3.1Plié (Basic Steps)
3.3.2Kick-Jeté (New Steps)
3.3.3La Chute d'Icare (Dance Phrases)
3.3.4Assemblé (Derivative Nature)
4. Third Act
4.1Glissée (The Non-Copyright Discourse)
4.2The Black Swan (Unfinished Part)
5. Révérence
A Repetition of Moves
1. Introduction
2. Chess and Copyright in Literature
3. What Moves the Chess Player?
4. Boundaries of Copyright
5. What Chess Players Are Entitled To
6. Databases
7. Conclusion
Tattoos: Control and Ownership of Body Art? Some Cultural Historical, Aesthetical and Legal Reflections
1. Dedicatio
2. On the History of Tattoos
2.1Tattoos and Culture
2.2Tattoos, the Self and the Others
3. Tattoos, Social Communication and the Law
3.1Tattoos and Aesthetics
3.2Aesthetics of Neutrality
4. Tattoos and Ownership
4.1The Issue
4.2Tattoos and German Copyright Law
4.2.1Copyrightability
4.2.2Ownership
4.2.3Scope of Protection
4.2.4Transfer of Rights
4.2.5Personality Rights and Data Protection
4.3 US Law
5. Coda
'The Portrait of a Gentleman' - The Cruijff Case
Commercial Rights of Sportspersons in Their Portraits: Better Protection through a 'Lex Hugenholtz II'?
1. What Kind of Legislation is to be Considered?
2. Lex Hugenholtz II
Sports Celebrities and Character Merchandising in the United Kingdom
1. Introduction
2.'Passing off' Defined
3. Passing off and Character Merchandising
3.1The Common Field of Activity Hurdle
3.2A Way Forward Emerges
3.3Recognition of a Role for Passing Off
4. Defamation
5. Malicious Falsehood
6. Conclusion
The Use of Personal Characteristics in Sports Manager Games Thomas Riis
1. Introduction
2. Personality Rights
2.1Sports Games
2.2The Handball Manager Game
3. Trade Mark Rights
3.1Personal Names
3.2Names and Logos of Sports Clubs
4. Final Remarks
Part 3: Sports Clubs: Organisational Efforts and Branding
Sports as Policy Levers in Intellectual Property Lawmaking
1. Introduction
2. The Protection of (Live) Sports Events Through Broadcasting Rights
3. Establishing a New Right for Sports Event Organisers
4. Preserving the Territorial Licensing Model of (Live) Sports Broadcasts
5. Conclusion
Football, Copyright . and the Art of 'Tiki-Taka'?
1. Introduction
2. Sports Events and Exclusive Rights
2.1Sports Events as Works of Authorship
2.2Sports Events as Audiovisual Recordings
2.3Broadcasting of Sports Events
2.4Specific Neighbouring Rights for Sports Events?
2.4.1Italy: A Related Right for Sports Events
2.4.2Other Sport-Related Regulations
2.4.3Spain
3. What about Athletes?
3.1Messi is not a Performing Artist
3.2Bullfighters are neither Authors nor Performers
3.3And what about e-Sports Gamers?
3.4Is This an Optimal Outcome?
4. Conclusion
Do We Need More Copyright Protection for Sports Events?
1. Introduction
2. Sports Events, Recordings and Transmissions as Objects of Protection
2.1No Copyright Protection for Sports Events 'as Such'
2.2Some National Protection for Sports Events as Such
2.3Protection for Recordings and Transmission of Sports Events
2.4Failed Attempt for Related Rights Protection in the CDSM Directive
3. Enforcement Avenues
3.1Blocking Injunctions
3.2Article 17 CDSM Directive
3.3The 2021 European Parliament Resolution on Challenges of Sports Events Organisers in the Digital Environment
4. Conclusion
Exclusive Rights to Carnival Parades: In Comparison with Professional Football
1. Introduction
2. Carnival
2.1Intervention
2.2Implicit Consent
2.3Interim Result
3. Professional Football
3.1Legal Nature of Broadcasting Rights
3.2Legal Nature of the Transfer of 'Transmission Rights'
3.2.1Transfer of the Rights to Injunctive Relief?
3.2.2Transfer of Consent?
3.2.3Authorisation Based on Application of § 185(1) BGB by Analogy?
3.2.4Contract for the Benefit of Third Parties
3.2.5Assignment of the Claim to Acquiescence
3.3Consequences for Antitrust Practice
4. Conclusion
Organisers of Sport Events: A Neighbouring Right?
1. Introduction
2. The German Report of 2006
2.1Condition of Important Investments Made
2.2The Public Interest of Sports Activities
2.3The Risk of Market Failure
2.3.1Market Failure by Absence of Investment
2.3.2Market Failure Caused by Too Much or Inadequate Protection
2.4Conclusion
3. The Study by the Asser Institute and IViR of 2014
3.1The Approach in the Asser/IViR Report Differs from the German Report
3.2Conclusion
4. The Performance of the Athletes and Players as a Basis for Protection?
4.1Whether a New IP Right for Performers and Players is in the General Interest
4.2The Risk of Market Failure
4.3Image Rights: A Heterogeneous, Unstable Form of Protection
4.4No Neighbouring Right for Athletes and Players as Performers
4.5A Neighbouring Right for Sports Organisers?
5. Conclusion
Sui Generis Rights: From Geschriftenbescherming to the Protection of Sport Event Organisers
1. Introduction
2. A New Problem
3. The Three Options
4. Sui Generis Rights
5. Geschriftenbescherming (Nineteenth Century)
6. Semiconductor Chip Protection (1987)
7. Neighbouring Right of the Performer (1993)
8. Neighbouring Right of the Phonogram Producer (1993)
9. Neighbouring Right of the Broadcaster (1993)
10. Neighbouring Right of the Producer of the First Fixation of a Film (1995)
11. Database Sui Generis Right (1999)
12. Trade Secret Protection (2018)
13. Neighbouring Right for Publishers of Press Publications (2021)
14. No Sui Generis Right (Yet): Sport Event Organisers
15. Conclusion
Is the Unauthorised Commercial Exploitation of Sports Events Unfair?
1. Introduction: from 'Eleven Friends' to 'Big Business'
2. Misappropriation and Sports Events in Four Jurisdictions
2.1Rejecting a Misappropriation Doctrine: Victoria Park Racing (Australia and England)
2.2Restricting the Misappropriation Doctrine through Copyright Pre-emption: National Basketball Association v. Motorola (USA)
2.3The Limitations of a Narrow Misappropriation Doctrine: Hard Pitch Heroes (Germany)
2.4The Limitations of a Broad Misappropriation Doctrine: FFR v. Fiat (France)
3. Analysis
3.1Common Ground and Disparity
3.2The Major Football Clubs' Main Revenue Streams
3.3Ticket Sales and Provisions against Resale
3.4Sponsorship and 'Ambush Marketing'
3.5Unfair Competition Law as the Legal Basis of 'Broadcasting Rights'?
4. Conclusions
An Economic Note on Reselling Tickets
1. Introduction
2. The Economic Logic of Ticket Pricing and Ticket Resale
2.1Why is Ticket Resale so Persistent?
2.2Why Do Organisers Resent Resale?
3. Discussion: Combatting Resale
Ethnic References in Branding and Artificial Intelligence Content Moderation: From the Ajax 'Jews' to the Washington Redskins and Beyond
1. Introduction
2. Ajax
3. Ethnic References as Sports Team Brands
4. Ethnic References as Trademarks
5. Reclaimed Epithets
6. Social Media Content Moderation and Artificial Intelligence
Sacrificing the Gods on the Altar of Sports: The Redefinition of Cultural Symbols in the Sports Sector
1. Introduction
2. Sports and Gods
3. Trademarks as Communication Tools
4. Sign Devaluation
5. Conclusion
Part 4: Sporting Events: Rules of the Game, Event Data and Reporting
Database Rights in the EU's Data Strategy: A Question of Sport?
1. The Introduction of the Database Right
2. Sports Data Markets and Players
3. The Sui Generis Right for Sports Data
4. Revisiting the Spin-off Doctrine in Light of the EU Data Strategy
Of Football Fixtures, Football Matches, Jeans, Sweatshirts . and a Folded Bike: Functionality in the CJEU's Copyright Case Law
1. Introduction
2. Autonomous Concepts of EU Copyright Law, Their Interpretation and Application
3. Functional Elements in Copyright Law - Different Proposals and a 'Pragmatic' Approach
3.1A Horizontal Functionality Doctrine within IP?
3.2Acceptance of Broad Overlap and Synchronisation of Legal Regimes
3.3A Pragmatic, Purposive Approach: Strict Requirements for Functional Elements in Copyright Law
4. The Relationship to Scope - The Need for a European Doctrine of Adaptation and Transformative Use
Creative Games
1. Introduction
2. Copyright in Games and Contests
3. Copyright in Sporting Events
4. Concluding Thoughts
Sporting Events as Intellectual Property and Free Movement of Services: The Implications of the Premier League Case
1. Introduction
2. Protection of Sporting Events in the European Union
3. Sporting Events and Free Movement of Services - Points of Departure
4. The Further Scope of Sports Rights in the European Union in Light of Free Movement of Services
5. Excursion: The Application of the Premier League Rationale beyond the Protection of Sporting Events
6. Conclusion
The Football Game as a Copyright Work
1. Introduction
2. The Purported Exclusion of Football from Copyright: Misunderstanding the Rules
3. An Alternative Basis for Excluding Football from Copyright's Domain: The Problem of Cheese
4. Ideas and Expression in Football: Tricks, Turns and Strategies
5. Copyright and Preconception: What Went on in Bergkamp's Mind?
6. Conclusion
How Football Changed Copyright Law: Public Performance, Communication to the Public and the Free Public Showing of Broadcast Films
1. Introduction: Copyright and Football
2. Meet the Players: Section 72(1) CDPA and the International Treaties
3. Pre-Match Warm-Ups: Further Developments and 2003 Amendment
4. FAPL v. QC Leisure Play-by-Play
5. Communication to the Public in EU Copyright Law: Moving the Goalposts or Levelling the Playing Field?
6. Post-Match Analysis: Communication to the Public and Films in the UK after Brexit
Audiovisual Coverage of Sports Events and Copyright Law: Originality in the Details?
1. Introduction
2. The European Status Quo on the Concept of Originality and Its Application to the Coverage of Sports Events
2.1The Role of Creative Choices in Asserting Originality
2.2The Principle of Non-Protection of Unprocessed Sports Events
3. Possible Sources of Originality in the Broadcasting of Sports Events
3.1Creative Choices Made in Filming the Event
3.2The Role of Special Effects and Commentaries
4. Conclusion
Images in Sports: Reflections on Related-Rights Protection
1. Genesis of Images of Sporting Events
2. Legal Treatment of Images
2.1International Law
2.2EU Law
3. Legal Protection for Non-Creative Photographs
3.1Technical Development of Photography
3.2Justification of Related Rights for Photographs
3.3National Approaches to the Protection of Photographs
4. Protection for 'Photographs' from Today's Perspective
5. Legal Protection of Certain Groups?
Quoting Copyrighted Sports Content Under Fair Use After Google v. Oracle
1. Introduction
2. Position of the Sports Leagues
3. Outcome of Google v. Oracle
3.1Can Fair Use be Applied to the Sec. 106(2) Derivative Work Right?
3.2In Deciding whether a Use is Transformative, Does It Matter whether what Results from Its Circulation or Adoption is Good or Useful?
3.3Does a 'Transformative' Use Need to Modify the Underlying Original in Some Way?
3.4Should the Focus of the Inquiry Be on the Immediate Defendant's Use Only, or Do 'Downstream' Uses Come into Play in Determining Transformativeness?
3.5How Concerned Should We be about Commercialness in Cases of Otherwise Transformative Use?
3.6How Exactly, are We to Assess 'Substantiality' for Purposes of Factor Three?
3.7In Cases Involving Transformative Use, what Kinds of Market Harms Count for Purposes of the Fourth Fair Use Factor?
4. Promising New Direction in Fair Use Analysis
Part 5: New Technologies and Future Developments
Keeping the Field of Play Level: Volition, Causation and Responsibility in American Copyright Law
1. Introduction
2. Volition
3. Causation
4. Responsibility
The Missing Goal-Scorers in the Artificial Intelligence Team: Of Big Data, the Right to Research and the Failed Text-and-Data Mining Limitations in the CSDM Directive
1. Introduction (in Honour of Bernt Hugenholtz)
2. An Ambitious Digital Strategy for the European Union, but no Reflection on the Role of IP and Its Limitations
3. Text-and-Data Mining: The Crucial Goal Scorer Missing in the EU Artificial Intelligence Team
3.1Initial Focus on TDM by Research Organisations and Public Universities, but what about Innovative Start-ups in the Field of AI?
3.2The Subsequent Introduction of a More General Exception for Other Purposes: A Step in the Right Direction, but with Serious Doubts about Its Effectiveness
3.3Additional Complicating Factors: Applicability of the Three-Step Test and Uncertain Safeguards in Case of the Technical Protection Measures
4. Conclusion: An Urgent Need to Reopen the Discussion around the Scope of TDM Exceptions at European and International Level
'Voetbal Hoort niet bij Robots': Attitudes Regarding the Use of Artificial Intelligence in Refereeing
1. Introduction
2. The Robot Referee and Other Digital Applications
3. But . Do We Want It?
4. Reporting from a Survey
4.1Human vs. AI Referee: Which One is Fairer?
4.2Reasons for Considering a Human Referee or an AI Referee Fairer
4.3Acceptance and Trust of Human/AI Referee's Decisions
4.4Human Agency
4.5Reasons for Preferring an AI Referee
5. Discussion
E-sports: A Battle Royale for IP and Antitrust?
1. Introduction
2. E-sports and IP
3. The Interface of Antitrust and IP in E-sports
3.1Market Definition in E-sports
3.2Refusals to License in the E-sports Industry
3.2.1Whether a License to Publishers' IP Rights is Indispensable
3.2.2Whether the Refusal Eliminates Effective Competition
3.2.3Whether the Refusal Limits Technical Development
3.2.4Whether the Refusal is Objectively Justified
3.3Antitrust Concerns Regarding Broadcasting in E-sports
3.3.1The Broadcasting of E-sports Events
3.3.2Exclusivity in E-sports Broadcasting Licences
3.3.3Territorial Restrictions in E-sports Broadcasting Licences
4. Conclusion
Mars
AI-JAX
Part 6: Extra Time
Academia as eSport: Competitive Academic Gaming after the Age of Covid
1. Introduction
2. Academia: The Humankind Odyssey
3. Key Moments of the Amsterdam Finals
3.1The Subject Matter Move
3.2The Performer Challenge
3.3Publicity Defences
3.4The Contract Move
3.5The Organisers
3.6The Sui Generis Move
4. The 2046 Auction

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