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19 May 2021CopyrightMuireann Bolger

Serie A/Google deal: ‘the copyright community will be watching’

In a win for Italy’s soccer league Serie A, tech giant Google has agreed to remove apps that enable users to watch unauthorised broadcasts of live games.

Serie A had argued that the apps enable viewers to infringe copyright and contribute to the devaluation of the television rights that comprise the bulk of Italian soccer clubs’ revenue.

“Google has removed from its Play Store apps illegally reproducing contents owned by Serie A,” the league said in a statement announcing the deal on May 17.

Under a new agreement, Google will use “innovative instruments” to detect any future copyright infringement, the league said.

Neil Parkes, partner at law firm Lewis Silkin, welcomed the development as a timely one. “Rights owners have lobbied technology platforms and other intermediaries to take action to prevent mass online copyright infringement for many years,” he said.

“Not only do such platforms provide a shop window for apps used to access infringing streams of live sports and other content, the fact that they are available on well-known and trusted platforms also give the apps a veneer of legitimacy, which undermines efforts to educate consumers.”

According to Tom Collins, senior associate at Stevens & Bolton, the unprecedented challenges posed by COVID-19 pandemic has spurred soccer leagues such as Serie A into action.

“Protecting the value of TV rights is paramount to Europe’s leading competitions and the member clubs, particularly given the increased availability and demand for televised football over the last 12 months in the absence of crowds,” he noted.

A significant development

This week’s announcement could have long-term ramifications, according to Catherine Lovrics, partner at Marks & Clerk.

“The legal obligations and liability that intermediaries such as Google have with respect to the dissemination of pirated content have raised challenging questions, with the approach varying from jurisdiction to jurisdiction,” she explained.

Until now, rights owners have struggled to effectively thwart the rise of pirated live content through traditional legal means and often face lengthy and costly court proceedings.

Consequently, many jurisdictions have re-evaluated the effectiveness of the copyright systems in place to prevent such infringements.

In 2019, the EU changed its framework and introduced a notice-and-stay-down obligation, changing the scope of who qualifies as a “host” for safe harbour. During the same year, the Directive on Copyright in the Digital Single Market, came into force intended to ensure “a well-functioning marketplace for copyright”, by reducing the “value gap” between the profits made by internet platforms and by content creators. It also encourages collaboration between these two groups and the creation of copyright exceptions for text and data-mining.

Flavia Ștefura, senior associate at MPR Partners, believes that it is no coincidence that this deal was struck as the deadline for the directive fast approaches on June 7 this year, and anticipates that it could be the first of a spate of such agreements.

According to the directive, an online content-sharing service provider performs an act of communication to the public “or an act of making available to the public” when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

“If no authorisation is granted, online content-sharing service providers are liable for unauthorised acts of communication to the public of protected content, unless they prove that they have made best efforts to obtain an authorisation,” said Ștefura. “It is not therefore surprising that the private sector is already taking relevant steps in the direction required by the directive.”

Marks & Clark’s Lovrics believes that this agreement in advance of the directive’s deadline could create new opportunities—and challenges—for rights owners. “The copyright community will be watching for the form and nature of the ‘innovative instruments’, and what requirements, if any, are on content owners to take advantage of the instruments,” she explained.

Role of gatekeeper’

Mark Kramer, partner and copyright specialist at Potter Clarkson, highlighted this development as the latest in a trend that has seen content platforms—previously seen as tech disruptors—evolving into the role of gatekeepers.

“This collaboration between Google and Serie A shows an increasing willingness among major online platforms, to work with rights owners to find satisfactory solutions to issues of piracy. It’s also indicative of the determination among major clubs, and the leagues to which they belong, to protect their brands in an online environment,” said Kramer.

He added that the move was much-needed by the sports world. “Many high-profile sports teams have for many years enjoyed a global fan base, but the advent of the online broadcast of matches in more recent years has led to an explosion in their worldwide brands, and in turn created greater difficulties in policing and upholding valuable licensing arrangements.”

Kramer noted that piracy was reported to have been one of the concerns which may have contributed towards the termination of the recent proposed takeover of Newcastle United.

However, Viktoria Kraetzig, partner at Nordemann, warned that while a bid to curb online piracy is a laudable one—the removal of the apps could potentially affect users’ fundamental rights.

“It’s therefore crucial that Google only removes those apps that illegally distribute copyrighted material, otherwise the users of the protected objects would be wrongfully restricted in their right to free access to information.

“Google should therefore be transparent in regard to the tools it uses to determine a copyright violation,” she cautioned.

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