Reporting and broadcasting the Olympics
Coverage of the London 2012 Olympics and Paralympics will undoubtedly dominate the media in the UK and worldwide this summer. When covering the games, news outlets must be familiar with the strict rules and guidelines restricting unauthorised associations with the Olympics, use of Olympic symbols and use of broadcast footage.
As discussed elsewhere in this month’s Download, none of: the word Olympics (or any variations or Paralympic equivalents); the Olympic rings; the Olympic mottos; or Paralympic equivalents of them (known as the "controlled representations") can be used in the course of trade unless a defence applies. Importantly, the "editorial use" defence permits use of the controlled representations in publishing or broadcasting a report of an event in or information about the games. However, news outlets should be aware that the IOC and LOCOG have trade mark protection in class 16, which is the class most relevant to newspapers, so care should be taken when use of the controlled representations might be "trade mark use". As we also discussed, LOCOG can prohibit unauthorised associations with the games which do not use any of the controlled representations. However, an equivalent defence allows the use of representations which create an association with the games when publishing or broadcasting reports or information about the games.
LOCOG considers these to be "wide defences" which will "benefit journalism". This makes sense. Restricting commercial entities’ freedom to refer to the games is one thing; restricting dissemination of journalistic content of high profile events would be another thing entirely. However, the defence expressly states that it does not apply to advertising material which is published or broadcast at the same time as, or in connection with, the permitted reports or information.
Whilst content may benefit from the editorial defences, LOCOG's view is that advertisers should not create an association with the games by trying to "piggyback" onto legitimate editorial uses. LOCOG gives as an example of such piggybacking where reporting of a day's events is promoted as "London 2012 Update – sponsored by [brand]". Similarly, advertorials which promote a brand but in the guise of a 'report' about the games are prohibited in LOCOG's view. LOCOG draws the line at "genuine journalism/commentary". News outlets should therefore be careful to avoid entering into sponsorship agreements with brands relating to any of their Olympic related content (e.g. relating to wraparounds), unless the brand is an official sponsor of the Games.
Broadcasting Olympic footage
The IOC sells the worldwide broadcast rights to the Games to selected broadcasters. When other organisations who have not purchased the rights wish to use footage of the Games, they should respect the IOC's and official broadcasters' copyright. In the UK this would mean, for example, complying with the fair dealing for the purpose of reporting current events defence. However, the IOC has published News Access Rules which apply to broadcasts of the games, which are arguably more restrictive than that defence.
The Rules apply to all forms of broadcasting, including terrestrial, satellite and cable TV, video on demand, radio, internet, mobile platform and other interactive media or electronic medium. They are of a different character to the UK broadcasters' Sports News Access Code of Practice, which sets out in a contract what the broadcasters agree to be fair dealing with each others' content.
The key rules include:
- Olympic footage can only be used as part of regularly scheduled daily news programs of which the actual news element constitutes the main feature.
- Such news programs must not be positioned/promoted as Olympic/London 2012 programs and cannot be used in any promotional materials.
- Non-rights holders can use a maximum of 6 minutes of Olympic footage per day, in no more than 3 news programs per day, with no more than 2 minutes being used in any one program and the news programs must be separated by at least 3 hours.
- Non-rights holders must give on-screen credit to the local rights holder during the broadcast.
- Olympic footage can only be used for 48 hours following the completion of the event. “Archive material” can only be used with the express prior written consent of the IOC.
It is not clear whether the IOC’s rule that only six minutes of footage can be used by non-rights holders per day corresponds with what the fair dealing defence would allow. Fair dealing is a question of degree and in circumstances where several hours of footage of the Olympics will be recorded and broadcast every day, it could be argued that the restrictions on the length of footage might be less than the defence would allow. The leading case in this area found that BSkyB’s broadcast of the BBC’s footage of the 1990 football world cup was fair dealing. Sky broadcast various excerpts of between 14 to 37 seconds, which featured significant events from the matches, a number of times during the 24 hours following the matches.
It is also not clear whether the IOC’s prohibition on the use of material 48 hours after the featured event has taken place correspond with the concept of an event being of “continuing current interest to the public”. The “current” concept is construed liberally by UK courts; current events are not confined to specific and very recent happenings. It is therefore arguable that the 48 hour threshold set by the IOC is more stringent than the defence would allow.
The Rules do not have the force of law but are a clear statement of what the IOC considers to be infringing. Would-be users of games footage should therefore be careful not to stray into infringing territory. The Rules make clear that the IOC will monitor compliance, with the threat of revoking access permits for non-rights holders in the event of breach. Given that the Games are likely to be the most talked about event of 2012, broadcasters will not want to be locked out of the Games as a result of breaching the Rules.
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Broadcasters need to be aware of the IOC’s restrictions which appear to go further than UK copyright law.
"The IOC sells the worldwide broadcast rights to the Games to selected broadcasters. When other organisations who have not purchased the rights wish to use footage of the Games, they should respect the IOC’s and official broadcasters’ copyright."