IMPORTANCE OF INTELLECTUAL

PROPERTY RIGHTS IN SPORTS

- ADARSH HIMATSINGHKA
“INTELLECTUAL PROPERTY RIGHTS AND SPORTS

Granting IP rights to sports move is definitely a different topic. Sporting movements do not
fall under the typically traditional topics under IP laws, and thus even today, drawbacks
exists. IPR often doesn’t consider from its ambit any act which is caused to be done by the
human body, such as typicaly surgical moves, but sporting movements are much more than
that. Many foreign authors have exclusively written about protection of sports moves under
the ambit of IPR, but interpretation lacks in India relating to the same. Sports move is a
combination of art, skill and moves, which gives it’s inventor/creator an added advantage
over their opponents. This move often concludes the fate of the game and hence providing
special protection to the so-called “signature move” becomes a most protected form.
“Signature moves” is a move or ability that is almost analogous to the person or character that
uses it and may imply that the move is usually a staple of the user’s reputation, and on most
occasions was invented by the performer. Hence, sports moves do fall under the ambit of an
idea of expression(art 21)

RELATION OF SPORTS AND INTELLECTUAL PROPERTY RIGHTS

The most priority objective of IP right is to empower an individual or an entity to protect

their intellect for a limited amount of duration. In sports, a lot of hard work and efforts are put
in by the sportsmen, the team, the organization/club associated with the sports activity which
is performed by the individual, or the organizers of the sports events. Each one of these
entities may use the IP rights from monitory benefits from the same

TRADEMARK

Trademarks are icons or also recognizable sign, expression of design indicator for unique
services or products of a particular source from that of the others. Trademarks play an
important role in brand building throughout the globe. Nowadays sports events like football
and cricket are branded using taglines, slogans and logos for every purpose. The brand value
generated from these sports events may be related with a sports team, sportsmen, or even the
merchandises of any item . Once a brand is established, monitory profits may be encored
through advertising. In some cases, trademarks have been filed on the name of the players
considering their popularity and brand image in the market.

Eg david bechkam has his own merchandise which has value of millions
A large amount of the games are evolved from the sports leagues played at a global level.
Hence, it becomes vitally important to file trademark protection for the teams participating in
these sports leagues to avoid conflict of IP rights. The main revenue model of the football
clubs is through advertising and online broadcasting rights of the players and team. However,
it would not be surprising to see huge amount of revenue generated through online games
derived from various sports leagues throughout the globe

COPYRIGHT
Copyright also known as author’s right is a type of IP owned by a creator of literary and
artistic works. Copyright protection covers literary and artistic works such as books,
paintings, music, films, and sculpture. Copyrights also includes computer programs,
advertisements, maps, databases, and technical drawings. In the world of sports, copyrights
play a very important role in protecting the artistic work which is an important part of these
sports events. Nowadays, with the increasing popularity and famr of the sportsmen and the
different leagues played throughout the world, a lot of video games and online games are
developing based on these sports events. Some of these video games include F1 (Formula 1)
racing games and FIFA world cup games which have enhanced as a result of increasing
popularity of the world class racing and football events. The look and feel of these games is
as good as jumping in the event actual event itself. This is mainly because, of advance
graphics and the technologies such as augmented reality and virtual reality which have
developed craze in the crowd and are also used in these games. Another key aspect of these
games is the use of image or icon of players in the video game. The experience of playing a
game with the star players is in itself a delighting and exceptional experience. However, in
order to avoid misuse of these icon care has to be taken in order to protect these star player
avatars through copyright protection in each game

PERSONALITY RIGHTS

In todays world, sports celebrities are created fast and celebrity status leads to various forms
of image creation, brand endorsement, revenue generation and capitalizing on fame. Thus,
endorsements, utilizing personality, image and celebrity status is a major source of revenue
for these celebrities. Personality/ publicity right, a related right, may be termed as the right to
control any commercial exploitation of their name, image, likeness, or any other aspect of
personal identity. Further, under the Indian Trademark Act, 1999, a sports celebrity may file
and obtain for a trademark in respect of his or her name for his protection, For example,
Sachin Tendulkar has registered trademark over his name so hence he has right on all the
revenue earned by people in his name.

Another related right close to sports, is character merchandising that is selling things under
celebrities name. Generally, character merchandising may be understood as monetizing ones
character, name or image, which has become a huge revenue earning business for example
Sachin Tendulkar who has merchandising business such as gifts and collectibles etc.

BROADCASTING RIGHTS

Broadcasting right are basically IP that is created during screening of sporting events and
which if further recognized by the Indian Copyright Act, 1957. The term of broadcasting
rights is twenty five years according to the copyright act. Typically, the broadcasting
companies own the broadcasting right, which allows the owner to rebroadcast that particular
sporting event. Further, as per the Indian Copyright Act, 1957, any person who re-broadcasts
the broadcast or makes any reproduction of such sound recording or visual recording where
such initial recording, or sells or hires to the public or offers for such sale or hire, any such
sound recording or visual recording, without the license from the owner, is said to have
violated and infringed the broadcasting right and has to pay damages or compensation for the
same.

SPORTS AND IP IN INDIA:AN EMERGING SECTOR

The Indian sports community is rapidly growing with different disciplines such as cricket,
football, badminton, hockey, tennis and kabbadi proving spectacular popular. Sport in India
has never really been taken seriously, but only specific sports are very hit . in world the sports
industry is a massive sector, bringing together entertainment, games, culture and monetary
business together. It is only in very recent that the commercial suitablity of sport in India has
begun to be explored and exploited.

The most commercial aspect of sports has not only added to individual revenue, but has
advantage for the economic growth of the country. Almost every area of the industry is being
include into and capitalised. IP rights (IPR) are assets that are used as marketing and
branding tools toward the branding of games and connected events, sports clubs, teams,
celebrity status, etc.

In the world of sports, a proper title has relevance in sports agreements which incorporate the
legal release of the talent of the sportsman, so that their work, images, personality rights, etc.,
can be used by another for their profit motive and revenue genertion. With the innovation of
the Indian Premier League (IPL), and various other emerging leagues, various teams have
been formed, which are owned by individuals or partners. Teams are sold and given to
manage to other individuals or partners and in such an event the chain of title becomes an
issue, in order to own the title in trademark, copyright and various other IPR which may form
a part of such an event.

Ownership of IPR in the sports industry

As they inherent basic attricute, IPR can be bought, sold or licensed. It is mandatory to
corroborate the ownership, so that the attributes of the IPR can be commercially revenued by
their owner. Therefore, in order to avoid disputes, it is recommended that the IP is registered,
as this enables ownership to be accurately get knwoned to the public.

IP protection is jurisdiction-specific, which means IPR must be registered in India even if

they are protected in a foreign jurisdiction. Registration of patents, trademarks, designs and
copyright could take several months or even years in India owing to considerable backlogs at
the IP registries, so businesses should plan their registration well ahead of entering the
market.

In India, Sports moves cannot be protected under the Copyright Act as a primary work, but it
can be protected as a sui generis right or a neighbouring right under the Copyright Act. This
is done through the concept of “performers rights”. Before the 1994 Amendment Act to the
Copyright Act, no such protection to performers was awarded. The 1994 Amendment Act
added Section 2 (q), Section 2(qq), Section 38 and Section 39 and which dealt with
Performers Rights. Section 2(q) defined “performance” to mean any visual or acoustic
presentation made live by one or more performers.

Section 2(qq) defined “performer” to include an actor, singer, musician, dancer, acrobat,
juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes
a performance. Sports persons are not mentioned specifically. The 2012 Amendment Act
added Section 38 A and Section 38 B, which deals exclusively with the Perfumers’ Economic
and Moral rights.

Since, Sports persons are not explicitly mentioned, there arise lacunae as to whether they are
in fact “performers” and even the judiciary has also not cleared this ambiguity. Section 2(qq)
is an inclusive definition, meaning that when used, enlarges the meaning of the word defined
so as to comprehend not only such things given, but may include those things which the
clause declares that they shall include.

Such persons are not explicitly given under the above definition but may be interpreted into it
by following the rule of “ejusdem generis”. When particular words pertaining to a class,
category, or genus are followed by general words, the general words are construed as limited
to things if the same kind as those specified. The legislature uses general terms to denote such
objects.

With the addition of moral rights such performances can claim protection, but not adequately.
The economic and moral rights under the Act does not in any way mention how another
performer should not copy the performers right and so is lacunae of the Act.

The same justifications that are used for copyright can be used for performers as well. Sports
persons use their skill and judgement to come up win their own “signature moves”. These
signature moves give the performers a competitive edge, which may at times decide the fate
of the game. If such performers use their labour, then shouldn’t it be protected? Take the
example of Dhoni’s helicopter shot. In the online version of Zee tv news of December 11th,
2015, there were allegations that Kevin Pietersen, the English batsman had copied Dhoni’s
helicopter shot. This is clearly not a subject matter of “work” under Section 2(y) of the
Copyright Act, but this belongs to Dhoni himself. Using Hegel’s Personality Theory, his
“Signature move” is an extension of himself and so his consent is required for copying or
reproducing the move. In the same interview to zee tv news, Dhoni had stated that he picked
up this helicopter shot from playing tennis ball cricket in his hometown and so meets the
criteria of being “original”. Newer technology methods have made copying such moves
easier and so must be protected.
CONCLUSION

Sports traditionally being a recreation active now has become a serious business with huge
profits. With increase in investors and stakeholder in sports, the criticality of protecting ones
rights has increases many folds. In such conditions, various types of IP rights act as an
effective tool, which enable effective and complete monetization. All in all, IP rights plays a
silent but an important role in creation, protection and monetization of sports and its related
activities.

The sports industry comprises stakeholders such as sponsors, broadcasters and players, all of
which have developed exclusive IPR. Companies therefore need to continuously monitor
their IPR by instituting effective systems, policies and regulations to prevent infringement.
Regular IP audits help to identify IP portfolios that need strengthening.

Even though India has ratified the WIPO Treaty on Performers Rights, there still exists
lacunae as to what all performers rights do come under the ambit of S.38 of the Copyright
Act. The project discussed the issues with the right to sports moves, but still, there are many
more performers who are not included under the ambit of the Act. The Copyright Act fails to
consider intangible rights – distinct mannerism and style with the right to sports moves. This
should be resolved so that more performers would have the incentive to show off their talent
and skill.

The new version of commercial sports magnetizes core IPR issues like Trademark,
Copyright, Design, licensing and franchising etc. All this delineates that IPR protection in
events like the above are inevitable. Legal contractual agreements must be in place protecting
all forms of IP created in sporting events, teams, individual players etc. so as to protect all the
stake holders and their financial interests. There are various forms of revenue generation
through the sports industry and it is important for the government to promote its national
sports and culture so as to raise it to international standards, paving India's way forward into
the exclusive league of developed countries across the world.”