Short Extracts Rule from Dutch Media Act only an Access Rule Because of Copyright
Court of Utrecht in Preliminary Relief Proceedings of 12 May
2010,
LJN: BM4200 (in Dutch)
The 'Dutch Major League' (Eredivisie) consists of the
eighteen best soccer clubs in the Netherlands and Eredivisie
Media & Marketing C.V. ("Eredivisie Media") manages the
commercial exploitation of the media rights and sponsoring rights
of the Dutch major football league clubs. Broadcaster NOS has
obtained the broadcasting rights and pays a considerable fee for
the exclusive right to broadcast highlights of major league matches
in, inter alia, Studio Sport. Fourteen Dutch regional
broadcasters have united in an attempt to get permission to
broadcast short extracts of major league matches, and have claimed
in preliminary relief proceedings that Eredivisie Media had to give
up footage of the major league matches.
Short Extracts Rule
The regional broadcasters have relied on the short
extracts rule, following
EC Directive 2007/65 regarding Audiovisual
Media. On the basis of this rule of
Section 5.4 of the Media Act 2008 (in
Dutch), with regard to events of great importance providers of
broadcasting services that have acquired those exclusive rights
must make short extracts available to other providers of
broadcasting services. Therefore, assuming that major league
football matches are events of great importance, Eredivisie
Media must give up footage. The regional broadcasters may then
broadcast short extracts of no more than 90 seconds, or, if the
sport moments are longer than 90 seconds, the extracts may be
180 seconds maximum. The Court in preliminary relief proceedings
ruled that Eredivisie Media must indeed give up footage of major
league matches to regional broadcasters, if so
requested.
Copyright Law
However, this is not the end of the story for the regional
broadcasters. There are copyrights and neighboring rights attached
to the footage, and even if they have the visual material at their
disposal, they are not allowed to broadcast it without the
permission of the rightholder, Eredivisie Media. Eredivisie Media
did not want to give this permission. Next, the regional
broadcasters relied on various exceptions in the Copyright Act and
the Neighboring Rights Act in order to be allowed to broadcast the
footage without permission.
The journalistic exception allows the press media to copy
messages on topical issues without permission and without having to
pay a fee. The Court ruled, however, that the major league matches
are mainly meant to amuse and entertain viewers, and therefore they
cannot be regarded as 'news broadcasts'. The reliance on the right
to quote failed because according to the Court, it is not
sufficiently plausible that the regional broadcasters will
broadcast the footage quotes in the context of an
announcement, assessment, polemic or scientific disquisition, or a
similar purpose. To conclude, the reliance of the regional
broadcasters on the 'exception of coverage' also failed. The
exception of coverage is meant to enable the media to make
recordings of topical events. The regional broadcasters would,
perhaps, be allowed to film the major league matches themselves,
but they have no access to the football stadiums for that purpose.
The exception of coverage is not meant to copy a protected work,
i.e. the footage.
In brief, on the basis of the Media Act the regional
broadcasters have a right to receive short fragments of major
league matches, but they are not allowed to broadcast this footage,
because they have no copyright permission in this respect. The
Court considered that the extracts rule is only an access rule and
not also a user right. In the end, the Court ruled that Eredivisie
Media did not have to hand over the footage because the regional
broadcasters are not allowed to use it anyway. So, what is the
added value of the extracts rule of the Media Act? This seems to be
the choice and quality of visual material. By means of the extracts
rule broadcasters do not depend on images that can be recorded from
television or the Internet, but they can request them from the
source. The right to broadcast the footage is quite another matter,
as appears from this judgment.