UNFAIR COMPETITION, CRICKET AND SPORT BROADCASTING IN
By:
DR. MUHAMMAD ABRAR IMTIAZ AHMED KHAN
PhD
Law (
Keywords: Competition;
Cricket; Pakistan; Public Service Broadcasting; Television; Private
Broadcasting; Sport
Introduction
Sport is treated
as economic activity in international trade. Cricket is a famous sport in
This article
focuses on unfair competition in cricket broadcasting in
Overview of broadcasting
The Rome
Convention (the Convention) laid the foundation for the idea of broadcasting.
The Convention established for the first time the international minimum
standard of protection and recognised three beneficiaries, namely, performers,
producers of phonograms and broadcasting organisations. The Convention also
establishes minimum rights for broadcasting organisations. These organisations
are granted three rights: to authorise or prohibit the re-broadcasting of their
broadcasts; fixation and reproduction.
There are two
kinds of broadcasting, public broadcasting and private broadcasting. The broadcasting
market is also well-known by free television viewing (public broadcasting) and pay-TV
or pay-per-view TV (private broadcasting). Public broadcasting is free-to-air.
The purpose of this broadcasting is to serve the interests of the public in the
best possible manner. Public broadcasting serves the interest of general
public, because it is financed by the public and controlled by the public. The
public interest means people as citizens rather than as consumers while the
sole purpose of the private broadcasting is to make a profit. The sole source
of finance in public broadcasting is the licence fee. It can also be funded
from commercial revenue, advertising, sponsorship, licensee fee, tax reduction
and state aid, while the private broadcasting is funded in an almost similar
way except the licensee Ice, tax reduction and state aid. Sponsors and
advertisers pay the broadcaster more to advertise their product when there is a
larger audience.19 In this way, they create
competition in broadcasting. The British Broadcasting Corp ("BBC")20 and Independent Television ("ITV")21 in the
United Kingdom, Pakistan Television Corp ("PTV") in
All forms of
broadcasting are ultimately financed by the consumer/citizen, whether it be as
a tax payer (state funding), as a consumer of products and services
(advertising and sponsorship), as subscriber to a given programme channel
(pay-TV) or as holder of a receiving set (licence fee). In each case the
consumer/citizen has no choice as he is obliged to pay. Accordingly, if the
broadcast is paid for by the public, then the sole purpose of this activity
should be for the public.
In the past, PTV
dominated the market until the establishment of the Pakistan Electronic Media
Regulatory Authority ("PEMRA") which issued licenses to private
companies to broadcast in
Though a balance should always be sought between a broadcast
right and the public interest but the problem is the exact definition of the
word public interest in sports. It may be defined as "a program in which a
large part of the audience is interested". In other words, it means
something in which the public at large have some interest or by which their
rights or liabilities are affected, but it does not mean the interest of a
particular person. To understand this concept, there is a need to consider the
background.
In a 1960 policy statement, the Federal Communications
Commission (FCC) in the
Until recent past, PTV had a very good tradition of
broadcasting cricket as a free-view product for the enjoyment of the general
public and there was no other TV channel except PTV until the end of the 20th
century in
Anti-siphoning laws
Compared with
In 1994, the
Australian Government introduced an anti-siphoning scheme,
Australian legislation empowered the Minister to broadcast certain types of
televised sports events free-to-air to the general public. It is also a
condition of a licence that a subscription TV broadcaster cannot acquire the right
to broadcast if the events are specified in the list in the Broadcasting
Services Act 1992 S. 115(1). From September 2008, the Australian Communications
and Media Authority ("ACMA") monitory authority operates the
anti-siphoning laws instead of the Minster of Communication.
Some
commentators interpret the intention of
As a result of
the above section, ACMA provides a sporting event list to broadcast free to the
general public. Under these laws, pay-TV can never acquire exclusive rights to
a listed event while free-to-air broadcasters may acquire exclusive rights and
further sell rights to pay-TV or cable operators.
The Australian
anti-siphoning list comprises 34 sporting events across 12 sporting categories including
cricket, tennis, golf, motor sports and football. Cricket matches are divided
into three categories. First, each test and one-day cricket match which the
Australian team play in
Anti-siphoning
regulations currently do not exist in the
Pakistani electronic media
This section
focuses on the history of Pakistani broadcasting which is divided into two
stages that is the evolutionary period (1947-2000) and the latest developments
(2000 to present).
Before 2002 when
the PEMRA was created, the Pakistani electronic media laws were scattered
amongst different legislative measures, administrative regulations and
departments and rules. The major national laws that contain electronic media
legislation were Copyright Ordinance 1962 and Pakistan Television Company Act
1964.
As far as
international obligations are concerned, during this period,
The second stage
started with the establishment of the Pakistan Electronic Media Regulatory Authority
under Pakistan Electronic Media Regulatory Authority Ordinance 2002 to
facilitate and regulate the only private electronic media undertaking. On April
8, 2005, by a Presidential Ordinance, the Government of Pakistan decided to
incorporate the management of intellectual property in keeping with the
upcoming global trend. An enforcement committee is working under the
supervision of the Intellectual Property Organisation of Pakistan with the
cooperation of Pakistan Electronic Media Regulatory Authority. Pakistan
Electronic Media Regulatory Authority controls the private sector. There are no
checks and balances for the public sector. The public sector enjoys full
facilities, like state aid, while the private sector has a different
restriction on media authority.
As a developing
country,
The obvious need
for new laws to control the public and private TV channels post 1997 resulted
in legislative action. So, new electronic media laws have
been promulgated, that is Cable TV Regulations 2002, Broadcasting Regulations
2002, Copyright Ordinance 1962 (amendment 2000).
The Competition
Commission of Pakistan ("CCP") was established on October 2, 2007
under the Competition Ordinance 2007. The CCP prohibits exploitive abuses of
the dominant market. Competition laws clearly stop pay-TV creating a monopoly.
The Pakistan Television Corporation and cricket
The Pakistan
Television Corporation is a public company limited by shares wholly owned by
the stale and is established to provide TV broadcasting services by telecasting
live programmes of all kinds: education, entertainment and several others. PTV
Corp is a terrestrial channel with a share of more than 70 percent of TV
viewers.
PTV Sports
Division is a high-earning division of PTV. The main objectives of this
division are to arrange healthy sports. PTV also broadcasts live national and
international sports keeping in view the interest of Pakistani viewers. Fees
are increasing day by day in Pakistani pay-TV: "The sports broadcast fees
may skyrocket in the future". The pay-TV market in
An interesting
factor is that PTV collects licence fees from viewers through electricity
bills. Almost everyone has electricity connection in
The real problem
started, when PTV as a public broadcaster and profitable organisation did not
telecast Pakistani cricket matches. The controversy started in 2003 on the
telecast rights between PTV and Geo Super, a private TV channel. The first
international one day cricket match between
Cricket has
hard-core fans in
Conclusion
In the future
commercial channels may obtain the exclusive right to broadcast all cricket
matches gradually. It is a major threat for cricket fans. Some consumer
associations in
Another solution
would be for the CCP to lake action against this practice. The CCP prohibits
exploitive abuses of dominant undertakings. Competition laws can clearly
prevent pay-TV from creating a monopoly. However, at this stage, there is no
proposed law or regulation in
The Pakistani
broadcast, legislation is not harmonised to world standards. The Government
should take the significant step of adopting an anti-siphoning sports law. By
doing so, the Government of Pakistan can protect the enjoyment and interest of
millions of people in free-view cricket.
[1] This is a
revised and updated version of the previous article published in Entertainment
Law Review. See Muhammad Abrar, Anti-Siphoning Laws and
[2] The
[3] PhD
research student at the
[4] Official
website of Pakistan Electronic Media Regulation Authority, available at.
<http://www.pemra.gov.pk/> accessed 11th November 2013.
[5] Introduction,
Intellectual Property Organisation of Pakistan available at
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[6] Although
the
[7] It is
jointly administered by the United Nations Educational, Scientific and Cultural
Organisation (UNESCO), the International Labour Organisation (ILO) and WIPO.
[8] In 1949,
three international organisations-namely International Office
of the Berne Union, the United Nations Educational, Scientific and Cultural
Organisation and the International Labour Organisation--began a draft proposal
on a related rights international treaty. After 10 years of meeting and
revisions, the Rome Convention final draft was ready in 1961.
[9] Rome Convention art.13.
[10] See art.3
(e and f) for the meaning. Because limited to a wireless means of transmission,
cable is not covered under it.
[11] M. Ficsor,
Guide to the Copyright and Related Rights Treaties Administrated by WIPO and
Glossary of Copyright and Related Rights Term (
[12] Public
broadcasting and government controlled broadcasting-are almost identical.
Government control broadcasting exists in
[13] Some
languages do not have a term fully corresponding to the English word
"public" and the closest words are state/government/official
broadcasting. See W. Rumphorst, "Public Broadcasting Legislation: Basic
Requirements" (2002) Media Online 1.
[14] The
[15] The
[16] S.
Clover, "Confused signals-satellite broadcasting and Premiership
football" [2007] E.L.R. 127.
[17] W.
Rumphorst, "Model Public Service Broadcasting Law" (1999) ITU/BDT and
UNESCO 2.
[18] Rumphorst,
"Model Public Service Broadcasting Law" (1999) ITU/BDT and UNESCO 1.
[19] Rumphorst,
"Model Public Service Broadcasting Law" (1999) ITU/BDT and UNESCO 2.
[20] Buckly et
al., Broadcasting, Voice and Accountability, (2008), p.203.
[21] Tax-payers
finance programmes indirectly through state aid.
[22] Consumers
of products and services finance programmes as a purchaser.
[23] Subscribers
of TV channels finance programmes as a viewer.
[24] Buckly et
al., Broadcasting, Voice and Accountability, (2008), p.63.
[25] H.
Fleming, "Television without frontiers: The broadcasting of sporting
events in
[26] Fleming,
"Television without frontiers: The broadcasting of sporting events in
[27] F.W.
Friendly, Due to Circumstances beyond Our Control (New York: Random House,
1967), p.291.
[28] 2005
C.L.D. 264 (Pakistani case law)
[29] A.E.
Varona, "Changing channels and bridging divides: The failure and
redemption of American broadcast television regulation" (2004) Minnesota Journal
of Law, Science & Technology 23.
[30] V.F.
Philips, "On media consolidation, the public interest and angels earning
wings" (2004) American University Law Review 623.
[31] Varona,
" Changing channels and bridging divides: The failure and redemption of
American broadcast television regulation" (2004) Minnesota Journal of Law,
Science & Technology 24-25.
[32] Varona,
"Changing channels and bridging divides: The failure and redemption of
American broadcast television regulation" (2004) Minnesota Journal of Law,
Science & Technology 25-26.
[33] See PEMRA
website at <http://www.pemra.gov.pk/> accessed 11th November 2013.
[34] See PTA
website at <http://www.pta. gov.pk/index.php?cur_t=vnormal> accessed 11th
November2013.
[35] T.
Humphrey, "The politics of sports: the why, when and how of sports law
development and implementation" [2008] I.S.LR. 30.
[36] Free-to-air
means that the Australian Broadcasting Corporation (ABC), the Special
Broadcasting Services (SBS) or commercial free-to-air broadcasters reach more
than 50 per cent of the Australian population.
[37] Broadcasting services Act 1992 S.115.
[38] Schedule 2, Pt.6, cl.10
[39] R. Redman
and J. Dwyer, "Sports broadcasting in Australia-Government signals
significant legislative changes" (2006) Sports Law Administration &
Practice 15
[40] Redman and
Dwyer, "Sports broadcasting in Australia-Government signals significant
legislative changes" (2006) Sports Law Administration & Practice 15.
[41] Humphrey,
"The politics of sports: the why, when and how of sports law development
and implementation" [2008] I.S.LR. 30.
[42] Broadcasting Services Act 1992 s.115.
[43] J, B.
Perrine, "Media Leagues: A Australia suggests new professional sports
leagues for the twenty-first century" (2002) Marquette Sports Law Review
801.
[44] Anti-siphoning
list commencing 2006 is still applicable. See ACMA website at
<http://www.acma.gov.au/theACMA/engage-blogs/engage-blogs/Broadcast/Statc-of-play-anti-.siphonin
g-update> accessed 11th November 2013.
[45] The
Television without Frontiers Directive (89/552) was amended in 1997 (97/36) to
include a new art.3A enabling Member States to view major sports events on
free-TV. S. Clover, "Confused signals-satellite broadcasting and
Premiership football" [2007] E.L.R. 128.
[46] Council
Directive 89/552 art.3 (i), [1989] OJ L298/23, amended by Council Directive
1997/36, [1997] OJ L202/60, and Council Directive 2007/65, [2007] OJ L332/27.
Sec P. Hettich, "YouTube to be regulated? The FCC sits tight, while
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[47] Council Directive 2007/65 art.3 (j), [2007]
OJ L332/27.
[48] Council Directive 2007/65 art.3 (k),
[2007].OJ L332/27.
[49] Hettich,
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[50] J.B.
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[51] In the
[52] J.B.
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[53] At first,
Pakistani television started with black and white transmissions, colour
transmissions began on February 18, 1979.
[54] Over the
years the system has grown countrywide. In 1964 television services in
monochrome were commissioned; in 1967 two production studios were added at
Rawalpindi and Karachi; in 1973 the national microwave network was commissioned
which linked TV centres; in 1974 Quetta/Peshawar centres were commissioned; in
1976 colour transmission started, in 1987 the federal TV centre at Islamabad
was commissioned; in 1992 a second TV channel for education was commissioned
(this was the only TV station at Islamabad along with 16 rebroadcast stations);
in 1996 local area transmissions from four stations started and extended to
three more stations; in 1998 transmission of PTV world programmes started; in
1998 up to 2006, several production centres (Lahore, Quetta, Peshawar,
Islamabad-l and Islamabad), 35 rebroadcast stations for PTV-I and 16
rebroadcast stations for PTV-2 were in operation. Introduction of Pakistan
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accessed 11th November 2013.
[55] Dhaka was
part of
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[57] The
Pakistan Telecommunication Ordinance 1994 established the primary regulatory
framework for the telecommunication industry including the establishment of an
authority. Thereafter, the Telecommunication
(Re-Organisation) Act No. XVII was promulgated in 1996 which aimed to
reorganise the telecom sector of
[58] WIPO is a
specialised agency of the United Nations. It is dedicated to developing a balanced
and accessible international intellectual property (IP) system, which rewards
creativity, stimulates innovation and contributes to economic development while
safeguarding public interest. WIPO was established by the WIPO Convention in
1967 with a mandate from its Member States to promote the protection of IP
throughout the world through co-operation among states and in collaboration
with other international organisations. Its headquarters are in
[59] Convention establishing the World
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[60] See WTO
website available at <
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[61] Enforcement co-ordination is being
institutionalised and expanded by establishing Enforcement Committees in
<http://www.ipo.gov.pk/Contents/AboutlPO.aspx>
accessed 11th November 2013.
[62] The TRIPS
agreement is a part of the WTO package. Therefore it applies to all WTO
members. The general timetable for implementing the TRIPS agreement, which
entered into force on January 1, 1995, was one year for industrialised
countries, five years for developing country and 11 years for less-developed
countries.
[63] See WTO website
available at <
http://www.wto.org/english/tratop_e/trips_e/tripfq e.htm>
accessed 11th November 2013; what is the World Trade
Organization? Available at <http://www.wto.org/english/thewto_e/whatis_e/tif_e/factl_e.htm>
accessed 11th November 2013.
[64] See
website of MCA at <http://www.mca.gov.pk/> accessed 11th November 2013.
[65] Section 3, Competition Ordinance, 2007.
[66] Section 3, Competition Ordinance, 2007.
[67] Article
1(111), Memorandum of Association, Pakistan Television Corp Ltd.
[68] "To
save Rs. 30 million, PTV did not show Pak-Austrolia series-Report", May
12, 2009, available at
<http://www.tvexplore.com/to-save-rs-30-million-ptv-did-not-show-pak-australia-series-report/>
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[69] Introduction
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[70] B.H.
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art exclusive" (2007) Fordham Intellectual Property, Media and Entertainment
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[71] There are
different packages from almost £15 to £43 per month.
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[74] "To
save Rs. 30 million, PTV did not show Pak-Australia series-Report", May
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accessed 11th November 2013.
[75] See
ESPN website available at <http; www.espncricinfo.com/pakistan/content/story/669399.html>
accessed 11th November 2013.
[76] The
Network for Consumer Protection is a not-for-profit, public interest and
independent non-government organisation in
[77] The
Competition Ordinance 2007 S.3.
[78] The
Competition Ordinance 2007 S.3.