1. Issues arising from broadcasting rights of major sports events – The case of Hong Kong YAN, Mei-ning Assistant Professor Department of Journalism HKBU At HKU IP, Media and Competition Law Roundtable 11 January 2008

2. 2 Disputes – previous and recent Previous disputes Recent disputes BA handled 7 competition complaints, 3 concerned broadcasting rights of sports events (all in 2004) 2006 World Cup (No complaints filed to BA) 2012 Olympics Games Issues: -Joint-bidding, -Exclusive acquisition - Sub-licensing Mainly about Broadcasters’ interests Viewers’ interest?

3. 3 Broadcasting of Olympics Games in Hong Kong 2008 and before TVB and ATV (both free-to-air) got HK TV rights through ABU 2012 TVB, ATV and NOW bid directly from IOC (failed) i-Cable (succeeded) i-Cable (pay-TV launched in 1993) got 2008 new media right The issue: Only i-Cable subscribers able to watch 2012 Olympics? General public can watch Olympics

4. 4 POSSIBLE SOLUTIONS The issue: how to ensure the public (majority of which are not i-Cable subscribers) can watch 2012 Olympics? Solution 2: Grant a free-TV licence to i-Cable (policy and market solution) Solution 3: IOC incorporated in its contract requiring i-Cable to sub-license broadcasting rights of some games to free TV? (contractual solution) Solution 4: The European Solution (legal solution) Previous disputes Solution 1: i-Cable comes up with very attractive subscription package (most TV households in HK become i-Cable subscribers) (market solution)

5. 5 Possible solution 3: sub-licensing Previous disputes in 2004 and 2006 All evolved around 1)exclusive acquisition of broadcasting rights 2)Rows concerning subsequent sub-licensing Sub-licensing A contractual solution (between event organiser, primary broadcaster and third parties) Any legal aspects? 1)Should sub-licensing be mandatory? (guaranteed contractual access to third parties) 2) Eurovision Case – intervention by the EC Commission and ECJ of sub-licensing conditions)

6. 6 Possible solution 4: European solution Broadcasting rights of major sports events Exclusive deals (may not violate EU competition law) Sub-licensing conditions closely scrutinized by the Commission and ECJ Regulation of listed events Right to short reports

7. 7 Exclusivity – pros and cons can create under-privileged social groups in terms of media and information access Market approach Exclusivity: (all broadcasting rights of the event vested in pay-TV) Competition law not intervening exclusive arrangements - pro-competition; legitimate practice - Important for sports events; good for TV market - Respect of property rights and contractual freedom -Non-pay TV viewers deprived of opportunity of watching the event -More and more pay-TV exclusive arrangements

8. 8 Exclusivity versus rights of the public Public’s right of access to information? Exercise of exclusive broadcasting rights to be regulated? Exclusivity: (all broadcasting rights of the event vested in pay-TV) List regulation (to protect public’s right of access to major events) Right to short reports (To protect public’s right to information)

9. 9 Situations in the U.S. FCC Sports Programming Migration Final Report (1994) Ruled out additional government action to promote free access to sports programming But not hesitate to act if there are threats to broad and economical access to a variety of sports programming No "anti-siphoning" laws to prevent exclusive broadcasting of major sporting events on pay TV

10. 10 List regulation (access of the pubic to major events) Individual European countries (in UK since 1955) Pan-European arrangements European Convention on Transfrontier TV (2002) Art.9bis (Council of Europe) TV Without Frontier Directive (EU)(1997) AV Media Services Directive (Dec 2007) Article 3j Controversial, initiated by COE in the 1980s and followed by EC in the mid- 1990s

11. 11 Listed events (UK 1955) The English and Scottish FA Cup Finals; The Grand National and the Derby; Test cricket involving England; The boat race (Oxford v. Cambridge); Wimbledon tennis; FIFA World Cup finals; and The Olympics and Commonwealth Games when held in Britain

12. 12 EU AVMS Directive (Dec. 2007), Art. 3j Each Member State may take measures to ensure that its broadcasters  not broadcast on an exclusive basis  events of major importance for society  deprive a substantial proportion of the public  the possibility of following such events by live coverage or deferred coverage on free television Member state shall draw up a list of designated events  Notify the Commission  Commission publishes a consolidated list Member state shall take measures to ensure its broadcasters  not to exercise exclusive rights to defeat the purpose of the listed events in another member state

13. 13 EU AVMS Directive (Dec. 2007), Art. 3j Events of major importance for society  E.g. the Olympic games, the football World Cup and European football championship  Criteria: Free television  broadcasting on a channel, either public or commercial,  of programmes which are accessible to the public without payment …;  (from Art.3a of TV Without Frontiers1997)

14. 14 EU AVMS Directive (Dec. 2007), Art. 3j Rationale:  protect the right to information and to ensure wide access by the public to television coverage of national or non-national events of major importance for society Actual effect:  To avoid Football World Cup final only on pay-TV, the inauguration of a new king or queen only on one single encrypted channel  The public may be guaranteed free access to the broadcasts of such events  These events must be broadcast unencrypted even if exclusive rights have been bought by pay-television stations Assessment:  Article 3a was useful, necessary, effective and proportionate (2003)

15. 15 Official Journal (OJ) C 183 of 02.08.2003 C 183 of 02.08.2003

16. 16 European Convention on Transfrontier TV (2002) Qualify as an event of major importance for society if at least two of the following conditions are met: – the event and its outcome has a special general resonance in the relevant Party, not simply a significance to those who ordinarily follow the sport or activity concerned; – the event has a generally recognised, distinct cultural importance for the population in the Party concerned and in particular contains elements of its cultural identity; – it involves the national team in the sport concerned in a major international tournament; – the event has traditionally been broadcast on free television and has commanded large television audiences in the Party concerned.

17. 17 Right to short reports (right of the public to information) Pan-European arrangements European Convention on Transfrontier TV (1989) Art.9 (amended in 2002) AV Media Services Directive (Dec 2007) Article 3k Initiated by COE in the 1980s and followed only by EC in 2007 Olympics (TV News access rules)

18. 18 Right to short reports (right of the public to information) EU AVMS Directive Article 3k For the purpose of short news reports  any broadcaster established in the Community has access on a fair, reasonable and non-discriminatory basis to  events of high interest to the public which are transmitted on an exclusive basis by a broadcaster under their jurisdiction. Allowing broadcasters to freely choose short extracts… Or establish an equivalent system Compensation shall not exceed the additional costs directly incurred

19. 19 EU AVMS Directive Article 3k Actual arrangments: Short extracts may be used for EU-wide broadcasts by any channel  including dedicated sports channels and  should not exceed 90 seconds.

20. 20 Right to short reports (right of the public to information) Background increasing monetization of public events and proliferation of exclusive broadcast deals for all kinds of public events  threatens the ability of non-right holders to cover certain newsworthy events To avoid organisers censoring coverage of unfavourable incidents General interest news stories in addition to sports news items can be reported  e.g., terrorist incidents, disorder, injury to spectators, attendance by public figures etc

21. 21 EU AVMS Directive Article 3k Aim: safeguard the fundamental freedom to receive information ensure interests of viewers fully and properly protected promote pluralism through the diversity of news production and programming

22. 22 Olympics News Access Rules (2004) Non-right holders  Can only broadcast Olympic material supplied by Olympic news agency in accordance to Olympics News Access Rules Olympic Material can be broadcasted in regularly scheduled news programmes  In no more than three Programmes per day  Not exceed a total of two minutes in any one Programme  Duration not exceed one third of a particular Olympic event being reported on and not exceed thirty (30) seconds of each such particular event being reported on  If previous Olympics Games material included, the duration will be reduced accordingly

23. 23 Olympics News Access Rules (2004) Accredited Non-Rights Holders will have  Access with equipment to all official press conferences held in the Main Press Centre  Access without equipment to other Olympic venues (not for Olympic events listed as ticketed high-demand sessions)

24. 24 Broadcasting of Olympics 2012 in Hong Kong: policy issues Policy issue: should the government ensure the public (majority of which are not i-Cable subscribers) can watch 2012 Olympics? And how? Grant a free-TV licence to i-Cable? (policy and market solution) The European approach? -sub-licensing conditions -Listed events -Right to short reports Only i-Cable subscribers able to watch 2012 Olympics? US interventionist approach?

25. 25 TV broadcasting of Olympics 2012 in Hong Kong: policy issues TVB and ATV i-Cable RTHK Free-to-air, commercial, big advertising revenues from Olympics Games (listed events X) Pay-TV (accessible? Reasonable rates?) PSB? (future unknown) No dedicated channel (listed events X)

26. 26 Short news report of major sports events – The case of Hong Kong Informal arrangements between stations Olympics Games news access rules Any new arrangements Modeled upon Art.3k of EU AVMS Directive?

27. End of presentation Thank you