Sporting events as dramatic works in the UK copyright system

Abstract

The Court of Justice of the European Union, in the Football Association Premier League and Murphy rulings, categorically concluded that sporting events themselves, and in particular football matches, could under no circumstances be classified as works for the purposes of copyright at the EU level, as they are not a given ‘author’s own intellectual creations’, within the meaning of the Information Society Directive2001/29/EC. Besides dismissing copyright in a sporting event per se, the CJEU leaves open to domestic legal orders its inclusion into subject matter that is worthy of protection, comparable to that granted to works.The proposal advocated in this article is to entitle certain sporting events – the so called ‘choreographed’ sports – to copyright protection in the UK, rather than to other IPRs or specific agreements concluded between a ‘holder’ of IPRs and a broadcaster. Owing to the absence of UK case law on the issue, determining the extent to which a sporting event warrants copyright protection calls for an enquiry into existing and stipulated forms of expression and other requirements for copyright subsistence, specified in the Copyright, Designs and Patents Act 1988 (‘CDPA’). It is submitted in this paper that the most plausible route is to ascertain whether an analogy can be drawn between a sporting event and a ‘dramatic work’, pursuant to section 3(1) of the CDPA, which is inclusive of a work of dance. The other conceivable option, in light of Norowzian v Arks Ltd (No 2), would be to qualify the content of films or broadcasts, reproducing sports competitions, as dramatic works.