Up until a recent proposal by the European Parliament (discussed below), the reason for that was clear. A sports event per se was not a work that qualified for protection under copyright law. Its outcome is unscripted and uncertain. Some have argued, however, that choreographed works do exist in a sports event and athletes have asked why there is a difference in performing an ice dance at the Olympic Games and performing one in an ice dance show (which would ordinarily qualify for copyright protection) when they retire?
Rephrasing the sports IP question around eSport
As outlined in my February 2018 article in the WIPO Magazine, eSport: everything to play for, which explores some of the similarities and differences between sport and eSport, I noted that eSports are a broad subset of the video and computer game spectrum. Players may play directly against each other or in parallel against a computer. Some eSports “borrow” a specific set of rules from an existing sport, but for the most popular and financially successful games, the rules and mechanics of play are created by the game’s designer.
The purpose of rulemaking in sports is aligned to promoting fair competition, the capabilities of the human body and ensuring the integrity of the outcome of a sports performance. These rules do not so easily align with video content, which often suspends reality and the limits of the human body to deliver an entertainment experience. Indeed, that tension was apparent in December 2018 at the International Olympic Committee (IOC) summit, where it was widely reported via the Associated Press that the IOC “gets cold on eSports”. It is now widely acknowledged that eSports are not a simple “bolt on” to a sports event.
A further difference between sports and eSports is that copyright is likely to subsist in the development of an eSports game, whereas it does not in sports per se.
Sports are a global industry but relies on fragmented IP
It is widely estimated that the sports industry accounts for at least 3 percent of global GDP. The fact that there are more listed members of FIFA than there are countries in the world is indicative of sports’ universal appeal. The global nature of the industry and major sports events creates complicated issues, not least because there is no single approach to the way in which content is covered by the IP laws of different countries and associated rights are protected.
The current sports industry approach to monetizing its...