TV rights in Japan.

• Author: Ohara, Yoshimi

1. What Are TV Broadcasting Rights And How Are They Protected In Japan

   Japan is no exception when it comes to the increasingly lucrative and expensive nature of the business of granting rights to film live sports events and broadcast such events live or delayed (commonly referred to as TV broadcasting rights). The expectation of the audience that it have access to live footage, and the popularity of sports events in the modern era, has made sponsorship of and advertising during broadcasting of such sports events very attractive. Free to air television companies have been able to sell advertising time at premiums that would have previously been unfathomable. Paid TV companies that are able to secure exclusive rights to live broadcasts of such sports events are also able to lure a greater number of subscribers. The potential money to be made from TV broadcasting rights has thus resulted in an exponential increase in the consideration paid for these TV broadcasting rights over the last few decades. For example, the 18 million Japanese Yen paid for the right to broadcast the Rome Olympics throughout Japan in 1960 pales in comparison with the 12 billion Japanese Yen paid by Japanese broadcasters alone for the TV broadcasting rights for the Sydney Olympics in 2000 and the 5 billion Japanese Yen paid in 2002 for the rights to broadcast the Salt Lake City Winter Olympics. (1) It was the Los Angeles Olympics that saw the first real surge in the price paid for TV broadcasting rights and triggered the formation of Japan consortium, a media consortium between NHK and a number of commercial broad-casting stations aimed at collectively purchasing TV broadcasting rights from the organizers of large international sports events. (2)

   1.1 TV broadcasting rights

   So, what are TV broadcasting rights from the perspective of Japanese law? Sports athletes, teams and leagues own various intellectual property rights with respect to their activities, such as trademark in the team's logo, and control other aspects of the team's image such as publicity and likeness of players. (3) However, the sports event itself is not protected by copyright in Japan unless there is some special feature, such as the copyright in the choreography of a figure skater's routine. (4) Granting of TV broadcasting rights is therefore different to granting a license under copyright or other intellectual property rights. Rather, the right to exclusively broadcast a sports event is actually only a contractual right granted by the owner of the right to the broadcaster.

   As there is no sui generis statutory protection regime for TV broad-casting rights, such right is secured by the owners of such rights by controlling who is allowed to bring broad-casting equipment into the stadium or other location of such sports event. The exclusivity of these rights is protected by contractual arrangements between TV broadcasters and the sports team itself, the whole league, or association for that sport, depending on TV broad-casting rights arrangements made between the athlete, team, or league, as the case may be.

   1.2 Copyright protection for distribution of international TV images via satellite

   Although the sporting event itself is not protected under copyright, once such event is filmed, such footage can be protected under copyright. In the case of a large sports event, particularly an international one, an organizer of such sports event commonly appoints a host broadcaster that is responsible for preparing so called 'international TV images'. This footage is usually unedited and without commentary and is transmitted via satellite so that authorized broadcasters can edit and add their own commentary and broadcast the sports event, either live or delayed. The organizer will usually require that copyright in the footage be assigned to the organizer by such host broad-caster so that under such copyright the organizer can control which broadcasters have access to the international TV images transmitted by the host broadcasters. Copyright protection of such international TV images was made clear following a decision of the Tokyo High Court. (5) The facts of this case-centered on the failure of the defendant to pay withholding tax to the Japanese tax authorities in connection with fees the defendant paid to a sales agent for footage of sports events, such as the US Open golf championship. The issue was whether the fees paid by the defendant to broadcast a live sporting event were regarded as copyright royalties. If so, withholding tax would be payable. However, if the payment was consideration for the granting of a contractual right, no withholding tax would be payable. It was held in this case that international TV images are protected under copyright, provided that such images are simultaneously recorded as they are transmitted via satellite. The court's reasoning was that such filming involves creative activities, such as sophisticated camera work and positioning of the camera, and meets the criteria of fixation by being simultaneously recorded as it is transmitted via satellite, which is one of the requirements for copyrightable film work. The finding of the court was, therefore, that fees paid by the defendant for use of the international TV images were subject to withholding tax.

   1.3 Rights held by the league/team and 'licensees'

   As noted above, TV broadcasting rights are protected by the owners of such rights by limiting who can bring broadcasting equipment into the...