COMBATING MOTORSPORT BROADCAST PIRACY IN INDIA -Sandipan Mohanty

X1 Racing League – A new dawn in Indian Motorsport

In the last decade, the journey of Indian Motorsports has been one, that can be aptly described as “through the peaks and troughs”.

The growing footprints of Indian Motorsports in the mainstream sport culture of India have been witnessed since 2011, when India hosted the Formula 1® Round for three consecutive years. Later, in the year 2015, Indian government recognized Motorsports as a discipline of “sports”, a status missing since the last six decades. In 2019, Gaurav Gill was honored with the prestigious Arjuna Award, with the distinction of becoming the first-ever recipient from Motorsport. 

However, Indian Motorsports did encounter its share of challenges and criticisms. The Formula 1® Indian Grand Prix had to take an early exile in 2014. The government recognition was partial since, motorsport as a sport was not entitled to financial aid from the government funds. And with the recent ill-fated incident at the Jodhpur Rally, Indian Motorsports was exposed to heavy criticism.

But, with the launch of X1 Racing League (X1RL) & X1 e-Sports League, there seems to be light at the end of the tunnel for Indian Motorsport now. X1RL – the first of its kind franchise based professional motorsports league, founded by Indian ace drivers Armaan Ebrahim & Aditya Patel, is all set to provide Indian motorsport the much-needed facelift and break the shackles of motorsport viewership in India.

The racing league – X1RL marks the arrival of a new dawn for Indian Motorsports. The promoters of the league – Racing Promotions Private Ltd. (referred as ‘League Organizers’) have entered into an exclusive commercial rights partnership with national federation, Federation of Motor Sports Clubs of India (FMSCI) to exploit the commercial rights associated with the league. The league is commissioned by the international motorsports governing body, FIA by virtue of the “commercial rights”, and inscribed in the FIA calendar along with Formula 1®. The league will include 6 teams in city-based franchises. Each team will consist of 2 cars and a total of 4 drivers per team, which includes one marquee international driver, a marquee woman driver, and 2 Indian drivers. The cars used in the league will be custom-built, 1400-cc/170 bhp.

Sony Pictures Network – Building the next big brand ‘X1RL’

In terms of viewership, the league organizers have been able to address the concern of Indian Motorsport having not made it onto television screens since ages. Sony Pictures Networks India (referred as ‘SPN’ or ‘sports media rights holder’), a reputed Indian Company, has acquired exclusive media & telecast rights to broadcast the racing series.

A pioneer in launching the OTT (over-the-top) platform, SPN’s popular VOD (video on demand) service – SonyLIV is all set to enthrall the Indian motorsport fans with 50 plus hours of programing content, which includes live streaming of the X1 Racing League action.

Keeping its reputation of building and nurturing brands like the Indian Premier League (IPL), SPN shall now be picking up the baton to popularize Indian Motorsports amongst the public.

I.     Impact of Sports Media Rights Holder & League Organizers on the Sports League

Like any other professional sports league, media and broadcast rights will serve as the foundation upon which the commercial framework of this particular motorsport league – X1RL will be built and sustain itself. The revenues received from the sale of such broadcast rights shall not only be utilized for making investments in teams; remunerating the athletes/staffs/teams; or for the maintenance and upgradation of race tracks/facilities but shall also enable the X1RL promoters and the FMSCI to invest back in developing grass root level motorsport.

SPN as the Sports Media Rights Holder of X1RL will play a key role in promoting and setting up the racing league itself. The broadcast and dissemination of the racing content across multiple platforms will shape the sponsorship structure of the league by maximizing value through wider reach and exposure and this would further help X1RL organizers to attract potential sponsors.    

Hence, the onus to protect the broadcasting and proprietary content of X1RL and reap maximum revenue lies on both the X1RL Organizers and SPN, given the underlying importance of the broadcasting rights and the respective interests, each of the said stakeholders have.

II.     Revolution of Sports Broadcast & Growing threats of piracy in Motorsport

Advances in communications technologies has revolutionized broadcast of sports coverage in terms of facilitating access to a wide public to take part in the spectacle and excitement of sporting events, including motorsports.

With the advent of live streaming technology and the introduction of new OTT sports viewing options such as subscription video on demand (SVOD) packages, sports fans are moving from traditional broadcast to online streaming services. However, such proliferation of OTT sports service has also raised considerable concern about the sports broadcasters’ rights, which have been regularly undermined by unauthorized online transmission of sports content.

Broadcast piracy concerns in the motorsport industry reached melting point in early 2019 as beIN sport announced that they had opted out of the bidding process for a new five-year contract for F1 television rights in the Middle East. beIN’s Managing Director for the Middle East, Tom Keaveny stated that “We pay enormous amounts for media rights, but the natural consequence of Saudi Arabia’s piracy is that those rights cannot be protected so we will pay less for those rights in the future.” He went on to say that “Piracy continues with impunity every day and represents an existential threat to the economic model of the sports and entertainment industry.”

III.     Online Sports Broadcast Piracy       

Online sports broadcast piracy generally takes place in the following forms –

1)     Live streams made available via peer-to-peer television services or streamed directly from a web server

2)     Recorded versions of events uploaded to file sharing networks such as bittorent or BitComet

3)     Highlights placed on user-generated-content (UGC) sites such as Youtube or Facebook

In India, the most common form of online sports broadcast piracy is via live streaming from web servers, and by uploading the recorded versions of sports events to illegal file-sharing networks such as Bitshare, Utorrent etc. Recent trends of piracy have been witnessed in form of uploading highlights of the sport content on UGC sites like Facebook & Youtube. Statistics indicate that during IPL, matches were illegally telecast by more than 1700 unique URLs via 211 unique servers, 122 pirate streams, 51 hosting sites and 23 infrastructure providers via remote servers.

The fact that offering of sports content via digital platforms have resulted in the rampant rise of a sizeable audience resorting to unauthorized live streaming of sports eventspreventing such category of unauthorized consumers from ‘free-riding’ on the efforts of sports leagues and official broadcasters has become incumbent.

IV.     Counter Measures to combat sports broadcast piracy –

In light of proliferation of sports broadcast piracy and illegitimate live OTT services across the country, it is worthwhile to explore plausible and effective counter measures to combat the menace of piracy.

The counter measures can be both contentious (legal) and non-contentious in nature. Legal injunctions have been successful to a large extent to address the situation; however, the multi-jurisdictional operation of infringers have posed certain jurisdictional limitations on such remedies. 

A classic example is a particular streaming channel, which provided live and deferred audio-visual footage of cricket matches, which moved it’s hosting servers to permissive jurisdictions such as the Sweden, Netherlands etc. wherein hosting service providers are reluctant to disable access to copyright infringing content on their servers. Such service providers specialize in high-risk and co-location hosting services that are often used as platforms to run websites that cannot legally operate elsewhere. It has been observed that infringers thrive by taking advantage of discrepancy between various jurisdictions and moving to permissive jurisdictions where they cannot be easily prosecuted.

The global trend has, however, witnessed a paradigm shift in terms of adopting non-contentious measures, including deploying innovative techniques, security strategy; collaborating with the government and industry; creating greater public awareness etc. to combat the menace of digital piracy.

A bird’s eye view of the various counter measures has been elucidated below –

A.          Legal/Contentious Measures

1)     Civil Remedies –

Typical civil remedies provided by Indian courts to copyright owners would include – an order prohibiting infringement (an injunction) and an order requiring payment of monetary compensation (an award of damages or an account of profits).

A particular kind of injunction order known as the “Ashok Kumar Orders” – an indigenous version of “John Doe Orders”, is commonly used by plaintiffs in civil infringement actions to restrain anonymous infringers of Intellectual property rights.

In the context of sports broadcast piracy, such “Ashok Kumar Orders” can be effectively used by aggrieved sports rights owners, wherein they can approach the relevant civil court to seek an ex parte interim injunction order to restrict the unauthorized telecast of a sporting event, for which it holds the exclusive broadcast rights.

Similarly, in the context of piracy of online telecast, such ex parte “Ashok Kumar Orders” can be obtained to compel ISPs to pre-emptively block infringing websites. While passing such orders, Indian Courts usually appoint local commissioners, who undertake various steps ranging from civil raids and seizures to delivery up/discovery of infringing material/documents and preservation of assets etc., with a view to prevent the unauthorized broadcast of the sporting event by any means, including the internet.

Over the decade, Indian courts have been instrumental in prohibiting numerous rogue websites from illegally broadcasting live and recorded sports footage and in the manner provided adequate protection to Indian broadcasters against live sports telecast.

2)     Criminal Penalties –

In the event some IP infringements are considered sufficiently heinous as to constitute an offence against the State, thereby rendering them as a criminal offence, the courts shall be empowered to take cognizance for imposing punitive sanctions on the offender.

B.           Non-Contentious Measures –

1)     Adopting New & Innovative Techniques to combat piracy –

X1RL promoters & SPN (Sports Media rights holder) can take cues from the deal signed between Justin.tv and Fox Sports Media Group, for the purpose of enhancing copyright protection for live video. Justin.tv, one of the world’s leading live streaming platforms, has entered into an agreement with Fox to work together on copyright protection for live streaming content, which involves the implementation of an innovative filtering solution designed to prevent copyrighted content from appearing on Justin.tv without authorization.

Livestream, another major live video streaming platform, has also implemented a system, which limits the number of concurrent streams any user can support until the user is verified internally, and as such effectively limits the number of fly-by-night video streamers that pop up to feed popular events and contents.

Apart from that, many other OTT service providers have adopted automatic take-down system that enables rights holders/copyright owners to kill streams in real time, without having to send takedown notices. Such technique is highly effective during live telecast of sports content, which are highly perishable in nature. So, relying on content owners to email or submit a takedown form, which is processed manually, will defeat the objective as the event would usually have ended before the manual process can address it.

Implementing such innovative techniques in the Indian scenario can be a welcome step in the fight against sports telecast piracy

2)     Deploying effective security strategy –

The importance of using effective technical security strategy for minimizing or preventing illicit streaming of live sports events cannot be undermined. It is important to note that the first step in combating live sport piracy is to detect the pirated services.

Prevalent techniques involving geo-blocking and traffic management have been exposed to various limitations, thereby paving way for the need of a more robust security strategy to counter piracy. Therefore, deploying an effective security strategy for combating piracy of live sports content is vital.   

Combining session-based forensic video watermarking technology, a method used to identify the source of piracy by pinpointing the last authorized user and device and digital fingerprinting technology, required for automatic content recognition (ACR) applications could achieve end-to-end anti-piracy service. This combined approach enables monitoring of known piracy sites for pirated streams and ultimately the detection forensics required to prosecute pirates and take action to disrupt the entire value chain from illicit source to consumer. The key is to disrupt the revenue stream of pirate websites.

SPN and other key stakeholders in collaboration with the government, industry and consumers, should consider adopting such technical strategies in a bid to minimize or prevent illicit streaming of live sport.

3)     Public Education –

Lack of awareness of the threat and the potential adverse consequences of digital piracy is often the key driving motives of copyright infringement. A fundamental shift in the general public’s attitude towards digital piracy through various educational campaigns, can effectively reduce the generally permissive attitude towards digital piracy and its potentially damaging consequences.

Various education campaigns aimed at raising awareness of potential security risks, or training individuals involved in enforcement of the digital piracy related regulations can be instrumental in efforts to combat piracy.

Both SPN & race league organizers should endeavor to spread awareness about piracy and implement stringent & well formulated Rights Protection Programme (RPP) to address broadcast and proprietary content piracy.

4)     Membership of Sports Rights Owners Coalition (SROC) –

Formed in the year 2006, SROC is an informal group of over 50 international & national sports governing bodies and prominent domestic sports federation and professional leagues organizers, with a particular focus on rights issues.

SROC as a forum has enabled key stakeholders of the sports industry to discuss and share best practices on key legal, political and regulatory issues; raise awareness of new developments and innovation in sports rights and to take joint action to protect and promote sports related rights.

In the recent past, SROC representatives had voiced concerns over Online Sports Betting and match fixing, which later resulted in France initiating reforms in its national betting regulation.

FMSCI & X1RL organizers should consider opting for a membership of the SROC shall be an effective strategy to address broadcasting and media issues relating to sports.

5)     Co-operation of Government –

In the context of live sports broadcast, SPN can also explore the option of working with governments on regulations at appropriate points in the internet delivery chains to facilitate the identification of, and action against, those involved in the delivery of consumption of unauthorized content.

Even for that matter, working closely with cyber police officials, who are likely more knowledgeable in the domain of cybercrime and technology, SPN shall be better positioned to combat piracy more effectively by bypassing the lengthy court procedures.

6)     Co-operation with Website Operators & Internet Service Providers (ISPs) –

ISPs in India are currently governed by a set of rules requiring them to take action against users suspected of infringing copyright, such actions ranging from issuing warnings, to collating allegations made against subscribers and reporting to copyright owners, to suspension and eventual termination of service.        

However, as a matter of practice, ISPs are loathe to voluntarily disconnect users uploading pirated content, in the absence of court orders. Moreover, as there is already a surge in the sale of high-speed internet connections, only for the purpose of downloading pirated content, it is unlikely that ISPs would even desire to enforce such rules.

Moreover, disconnecting a user remains a contentious aspect, primarily for the reason that right to access information and entertainment through the Internet is recognized as a constitutional right. In such scenario, cross industry MOU or government policy would be a good bet to incentivize ISPs to issue warnings to habitual infringers to refrain from piracy. The tone should however be educational, informing the implications of piracy and shall not threaten disconnection of accounts.

Website operators can aid in restricting re-transmission of stolen live steaming content, by allowing streaming content only when they receive confirmation that the person uploading the stream is authorized to do so. They should also facilitate measures to disable instantly the ability from pirates from uploading content, including blocking any uploads from their IP address. They should also implement strict limits on the number of viewers that can see a particular stream. They should further preserve identifying information about their users, and they should require such information as a condition of providing users access to their streaming technology websites.

In these scenarios, it is worthwhile for the league promoters & SPN to explore strategic partnerships with the ISPs in a bid to mitigate revenue loss incurred due to illegitimate viewership.

V.     Conclusion

Existing legal frameworks can mitigate the levels of digital piracy, by allowing sports rights holders and league owners to take legal action against infringing parties, but only to the extent that these prevalent laws are enforced in practice and taken advantage by the stakeholders.

Inadequate allocation of resources for enforcement of legal instruments and reluctance of league organizers and right holders to take legal action against infringers will result in undermining the value of the laws and also the impact on the scale of digital piracy. Moreover, to effectively curtail both pirate supply and demand, a stronger legal framework, with effective enforcement, including through cross-border cooperation is imperative.No doubt some of the non-contentious measures will be prone to certain limitations on public policy grounds and constitutional permissibility and shall be heavily tested on the touchstone of Governmental intervention for effective implementation and execution. However, the business-friendly attitude of the present government assures positive development in the crusade against the rampant digital piracy. Motorsport broadcast piracy may be best tackled with a series of measures, through dedicated, proactive and continuous efforts and co-operation from the stakeholders of the sports fraternity.

Sandipan Mohanty  Corporate & Commercial Lawyer, Legal enthusiast – Motorsports & Mobility –

https://www.linkedin.com/in/mohantysandipan/


Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Bizbehindsports and Bizbehindsports  does not assume any responsibility or liability for the same.
  

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