Supreme Court finds unauthorized broadcasting of matches in bars is a crime against the market, but not against intellectual property
Offering football matches in bars and restaurants without paying the fees that make their exhibition possible is a minor crime for the market and consumers, but it is not an infringement of intellectual property, a crime which, unlike the previous ones, prison term. This is how the Supreme Court sees it in a verdict, delivered on May 31, in which it dismisses the claims of the prosecutor’s office and LaLiga, which appealed a judgment of the Valencia Provincial Court that was ordered to pay of EUR 720 in a fine and LaLiga compensation to a businessman who, since October 2018, has been broadcasting unauthorized football matches on the televisions of his three bars in the Turia capital. For the prosecution, it was an intellectual property crime, a legal qualification that the Supreme Court disagrees.
It is not a trivial matter, every time since the legal reform of 2015, the Penal Code punishes with sentences of six months to four years in prison anyone who for economic benefit “manufactures, plagiarizes, distributes or economically exploits” a work or advantage “literally, artistically or scientifically” reflected “in any support or communicated in any way”, without the permission of the owners of those proprietary rights.
In its ruling, a statement by President Manuel Marchena, the Supreme Court explains that “audiovisual recordings and broadcasts by broadcasters are part of the substantive content of the right to intellectual property and there is no doubt that the public communication of those recordings is only legitimate if duly authorized.” For the chamber, “it is also not in dispute that the infringement of these rights is punishable by criminal law and for this it is sufficient to verify that the facts analyzed have been classified as a crime against the market and consumers.”
However, the magistrates reject that the violation of the exclusive rights generated by the broadcast of a football match falls within the concept of “literary, artistic or scientific work or performance”. The sentence points out that it is not easy to define the boundaries of type when it contains normative elements that evoke literature, art or science. Precisely for this reason, the court adds, “the guidelines to define that scope must be extremely careful not to exceed the contours of what each word allows.”
“Football is not literature, of course. Nor is it a science,” states the Most High as a doctrine. “It is true that in a football match – in general in any sports show – there can be incidents of undeniable aesthetic value, but interpreting those moments or sequences of technical perfection as defining notes of an artistic show can lead to the transgression of the limits of the principle are typical,” he adds.
For the audience: “a football match is a sporting spectacle, not an artistic spectacle”, and that conclusion is drawn, “not only because of the empirical verification that there is no lack of matches in which the spectator does not have the opportunity to appreciate any value play artistically , but because in the quest for victory there are actions that are considerably removed from any canon, whatever it is subscribed to, of artistic beauty».
The decision of the Supreme Court is not free from accusations against the legislator. “There are many occasions when the legislative will and the legal technique to make it happen don’t go hand in hand,” he explains. “Recent experience shows that this separation between the dictates of dogmatics and legislative reality has become a phenomenon that has been given a worrying charter by nature,” he continues.
Source: La Verdad
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